Bombay High Court
Mr. Ashok Rajaram Raul vs Mr. Mandar Pramod Vichare And Ors on 17 May, 2021
Bench: C.V. Bhadang
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO.4838 OF 2019
Mr. Ashok Rajaram Raul
Age 67 years, Address-5B/11,
Pereira Nagar Co-Op.Hsg. Society,
Khopat, Thane(W). .. Petitioner
Vs.
1. Mr. Mandar Pramod Vichare
Age 41 years, Address - Flat No.601,
Samarth Ganga Niwas, Govind
Bachaji Road, Charai, Thane (W).
2. Mr. Mahesh Parshuram Kadam
Age 38 years, Address-Lad Chawl,
Almeida Road, Opp. Vidhata Society,
Chandanwadi, Thane (W).
3. Mr. Tushar Ramesh Gaikwad
Age 33 years, Address-6A/21,
Pareira Nagar, Near S. T. Workshop,
Khopat, Thane (W).
4. Mr. Yogesh Vishwanath Godbole
Age 40 years, Address-A3/301,
Jasmine Bldg., Parijat Garden CHS,
G. B. Road, Thane (W).
5. The Returning Officer, Ward12-D,
C/o. Thane Municipal Corporation,
Mahapalika Bhavan, Dr. Almeida Road,
Panchpakhadi, Thane (W).
6. Thane Municipal Corporation
Headquarters at Mahapalika Bhavan,
Dr. Almeida Road, Panchpakhadi,
Thane (W). ..Respondents
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Mr. P.K. Dhakephalkar, Senior Advocate a/w S.M. Oak a/w Sagar
Joshi i/b Manesh Kale, for the Petitioner.
Mr. S.S. Kulkarni, for the Respondent No.1.
Mr. R.S. Apte, Senior Counsel a/w Mandar Limaye, for the
Respondent No. 6.
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CORAM : C.V. BHADANG, J.
RESERVED ON : 6th JANUARY 2021
PRONOUNCED ON : 17th MAY 2021
JUDGMENT :
. Rule. Rule made returnable forthwith. The learned
counsel for the respondents waives service. Heard finally by consent
of parties.
2. The challenge in this petition is to the judgment and
order dated 16 March 2019 passed by the learned Civil Judge,
Senior Division at Thane in Election Petition No.2/2017. By the
impugned judgment, the election petition filed by the first
respondent has been allowed, thereby setting aside the election of
the petitioner as a Councilor from Ward No.12-D of Thane Municipal
Corporation and the first respondent is declared as an elected
candidate from the said ward in the place of the petitioner.
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3. The brief facts necessary for the disposal of the petition
may be stated thus-
That the general elections of the Municipal Corporation,
Thane were held in February 2017 in which the petitioner and the
respondent Nos.1 to 4 were the contesting candidates, from Ward
No.12-D, Siddheshwar Talav, Nagdevwadi, Chandanwadi, Thane
(West). In the said election, the petitioner polled highest number of
votes being 9184. The first respondent was the immediate rival who
polled 8171 votes. The respondent Nos.2 to 4 secured respectively
4446, 1600 and 216 votes. The petitioner having secured the
highest number of votes was declared elected.
4. The first respondent filed election petition, under
Section 16 of the Maharashtra Municipal Corporations Act, 1949
('Act of 1949') being Election Petition No.02/2017 before the
learned Civil Judge, Senior Division at Thane, challenging the
election of the petitioner on the ground that the petitioner was
disqualified to contest the said election and on account of a material
irregularity in the election proceedings and the corrupt practice. In
short, according to the first respondent, the petitioner (the
respondent No.1 before the Trial Court) filed his nomination form
furnishing false, misleading and incomplete information. While
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elaborating the said ground, it was contended that the petitioner
had disclosed in the nomination form that there is only one criminal
case pending against him, while there were two other criminal cases
in which the petitioner was facing trial. According to the first
respondent, the following two criminal cases were not disclosed by
the petitioner while filling the nomination form (i) and (ii).
(i) Regular Criminal Case No.294/2015, (FIR
bearing No. CR/231/2000, Naupada Police Station) wherein
Respondent No.1 is Accused No.2 and which is pending before the
Hon'ble 1st Chief Judicial Magistrate, Thane, at Thane, for offences
punishable u/s. 406, 409, 34 of I.P.C.
(ii) Case No.4414/SS/2005, pending before the Hon.
43rd Metropolitan Magistrate Court, Mumbai, wherein the
Respondent No.1 is arrayed as Accused No.1.
5. It was contended that by furnishing such false,
incomplete and misleading information, the petitioner has mislead
and mis-represented to the voters of the constituency about his clean
image "resulting in supremacy over other candidates". According to
the first respondent, on account of such misleading information, the
voters were induced by the petitioner, to cast votes in favour of the
petitioner, although the petitioner was facing offences of cheating,
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criminal breach of trust and other offences, involving moral
turpitude. It is contended that this has materially affected the result
of the election.
6. On behalf of the first respondent, reliance was placed
on a notification dated 1 September 2006 issued by the State
Election Commission, according to which, a candidate contesting an
election is obliged to make full and complete disclosure with regard
to the matters in para 5 of the preamble of the said notification. It
was contended that in the event of a candidate furnishing
incomplete, incorrect or false information, or failing to furnish full
and correct information with regard to the five matters, it would be
a sufficient ground for setting aside his election, as he would be
disqualified under the relevant provisions of law. The disclosure
which is required to be made by the candidate on the five aspects is
as under-
(i) Conviction / acquittal / discharge in a criminal case.
(ii) Pendency of any criminal case for any offence punishable with
imprisonment of two years or more and in which the charge is
framed or cognizance taken.
(iii) Assets of the candidate and his spouse.
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(iv) Liabilities including liability to public financial institutions and
Government dues.
(v) Educational qualifications.
The material case is that the false and misleading information
was furnished relating to clause (ii) above.
7. It was contended that had the petitioner not made any
false representation and/or misleading statements and declarations,
the first respondent would have had a level playing field in the
election.
8. There was another ground about the cheque issued by
the petitioner as a Chairman of Jagmata Charitable Trust Colbar
towards the property taxes pertaining to Jagmata Shankar Mandir
being returned as dishonoured. It was therefore, contended that No
Dues certificate, issued by the Corporation was not valid.
9. For the present purpose, we are not concerned with the
said ground as the Trial Court has principally allowed the election
petition on the ground of alleged non disclosure of the two criminal
cases in the nomination form, although the Trial Court has held that
this does not amount to a corrupt practice. The Trial Court has
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relied upon the decision of the Supreme Court, in the case of
in order to find that the petitioner
was disqualified on account of the improper disclosure in the
nomination form. The Trial Court had further gone ahead and has
declared the first respondent to be elected as a Corporator
(inasmuch as the first respondent had secured the next highest
votes) in place of the petitioner.
10. It may be mentioned that the petitioner had filed an
application (Exh.37) under Order VII Rule 11(a) of the Code of Civil
Procedure ('CPC', for short) for rejection of the petition on the
ground that it does not disclose any cause of action. The learned
Trial Court by an order dated 5 December 2017 dismissed the said
application, thus refusing to reject the election petition. The
petitioner challenged the same before this Court in C.R.A
No.100/2018. This Court by a judgment and order dated 22 March
2018 dismissed the revision application thereby confirming the
order passed by the Trial Court.
11. The petitioner resisted the election petition. It was
contended that the allegations regarding corrupt practice and/or
1(2015) 3 SCC 467
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undue influence were vague and baseless and in fact defamatory in
nature. It was denied that the petitioner had intentionally concealed
the pendency of any criminal case. It is submitted that except the
case which was disclosed, there were no other criminal cases
pending against the petitioner "which were required to be disclosed
in the nomination form". It was contended that in RCC
No.294/2015 charge was yet to be framed and therefore, it was not
obligatory on the part of the petitioner to disclose the same, in the
nomination form, as the cognizance was not yet taken. In so far as
RCC No.4414/SS/2005 is concerned, it was pointed out that the
same is dismissed long back in the year 2009. It was thus denied
that there was any false, incomplete or misleading information
furnished in the nomination form. The allegations about there being
default in the payment of taxes in respect of Jagmata Charitable
Trust Colbar were also denied.
12. On the basis of the rival pleadings, the learned Trial
Court framed the following issues.
Sr. Issues
No.
1 Does the petitioner prove that, respondent No.1
has made false, incomplete and misleading
statement in declaration furnished by him ?
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2 Does said alleged statements in declaration have
materially affected result of election ?
3 Is respondent No.1 liable for disqualification on
account of said alleged statements made in
declaration ?
4 Is the petition tenable on grounds mentioned in
it ?
5 Is the petitioner entitled for relief sought for ?
6 Costs on whom to be saddled ?
7 What order and decree ?
13. At the trial, the first respondent examined himself
(P.W.1) alongwith Ms. Snehlata Kolte (P.W.2) and produced
documents including certified copy of the roznama in RCC
No.1690/2019 alongwith others.
14. The petitioner examined himself (R.W.1). The
respondent Nos.5 and 6 examined one Junia Pandey Pardeshi. The
nomination form was produced at Exh.156.
15. The learned Trial Court answered Issue Nos.2 to 5 in
the affirmative and Issue No.1 partly in the affirmative and by the
impugned judgment and order allowed the petition as aforesaid.
Feeling aggrieved, the petitioner is before this Court.
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16. I have heard Mr. Dhakephalkar, the learned Senior
counsel for the petitioner and Mr. Kulkarni, the learned counsel for
the contesting respondent No.1. I have also heard Mr. Apte, the
learned senior counsel for the respondent No.6. The parties have
also filed synopsis of their arguments. With the assistance of the
learned counsel for the parties, I have gone through the record.
17. It is submitted by Mr. Dhakephalkar, the learned Senior
counsel for the petitioner that the first respondent in this case was
required to plead and prove three aspects namely - i) non-disclosure
of the offence (which the petitioner was required to disclose in
accordance with law) in the affidavit filed alongwith the nomination
form; ii) such non-disclosure being in breach of any law or
notification which is applicable and which is binding and iii) that
such non-disclosure has materially affected the result of the election.
18. It is submitted that none of these aspects have been
pleaded or proved by the first respondent. It is pointed out that the
learned Trial Court in paragraph 25 of the judgment has held that
there is no evidence to establish the ground of corrupt practice as
against the petitioner. It is submitted that in such circumstances, the
ground based on Section 100(1)(b) of the Representation of the
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Peoples Act, 1951 ('Act of 1951'), no longer survives. It is submitted
that in so far as non-disclosure of offence / criminal cases is
concerned, the Trial Court has failed to notice as to under which law
the petitioner was mandated to make such disclosure. The learned
counsel was at pains to point out that strict rules of pleading apply
to election petition. It is pointed out that the first respondent, apart
from failing to plead necessary details, had also failed to produce
the notification dated 1 September 2006. It is submitted that thus
the fundamental requirement of clause (iv) of Section 100(1)(b)
was not satisfied. It is submitted that the learned Trial Court in
paragraph 49 of the judgment has also observed that the first
respondent has not pleaded that the non-disclosure of the offence
has materially affected the election of the petitioner and inspite of
that the learned Trial Court has erroneously proceeded to hold that
the non-disclosure of the offence has materially affected the
election. It is pointed out that the reliance placed on the decision in
the case of Krishnamoorthy is misplaced in as much as it was a case
of corrupt practice which is not held to be proved on facts in the
present case. It is submitted that the Trial Court was also in error in
placing reliance on the decision in the case Kisan Shankar Kathore
Vs. Arun Dattatray Sawant1. It is submitted that the election
1(2014) 14 SCC 162
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petition was essentially under Section 16 r/w. Section 403 of the Act
of 1949 and therefore, the first respondent ought to have pleaded
and proved the fact of non-disclosure of the offence having
materially affected the result of the election. It is thus submitted
that the Trial Court was in error in setting aside the election of the
petitioner.
19. The learned counsel has also taken exception to the first
respondent being declared as elected in the place of the petitioner.
It is submitted that no such course was open having regard to the
provisions of the said Act of 1949.
20. Mr. Kulkarni, the learned counsel for the respondent
No.1 has supported the impugned judgment. It is submitted that the
State Election Commission, has issued an order on 5 October 2015
under Article 243-ZA of the Constitution of India read with Section
14 of the said Act prescribing the nomination form and the affidavit
in support thereof. It is submitted that the said order is a piece of
subordinate legislation which need not be pleaded. It is submitted
that the Court can take judicial notice of the same under Section 57
of the Evidence Act. It is submitted that under Section 16 read with
Section 403(3) of the Act, the Trial Court has all the powers and
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jurisdiction to take cognizance of the said order and to decide the
election petition accordingly.
21. In so far as the ground about non-production of
notification dated 1 September 2006 is concerned, it is submitted
that this was not the ground raised before the Trial Court, nor it has
been raised in the present petition. Quite to the contrary, in the
Written Statement the petitioner has conceded about the existence
of the notification dated 1 September 2006, being part and parcel of
the general election 'guidelines and regulations'. It is submitted that
the petitioner in the Written Statement has raised a defence that he
was required to disclose only those cases where the charge is framed
and not the cases where merely the cognizance is taken. It is
submitted that thus the contention about the non-production of the
notification dated 1 September 2006 is misconceived.
22. The learned counsel placing reliance on the decision of
the Supreme Court in the case of Krishnamoorthy has submitted
that once it is established that the successful candidate was involved
in certain criminal cases and there is no disclosure of those cases,
the same would amount to corrupt practice. It is submitted that the
petitioner has admitted in the cross examination that he did not
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disclose Criminal Case No.294/2015 because no charge was framed
against him in that case. It is submitted that thus the only question
before the Trial Court was whether the non-disclosure of the said
case will result into invalidation of the election. It is submitted that
the first respondent, has clearly pleaded, that non-disclosure of the
criminal cases involving offences inviting sentence of two years or
more, has deprived the voters from exercising their franchise, freely
and the election is vitiated by undue influence and corrupt practice.
The learned counsel has pointed out that in paragraph 8 of the
election petition it has been specifically pleaded that such non-
disclosure has materially affected the result of the election.
23. The learned counsel placing reliance on the decision of
the Supreme Court in Krishnamoorthy and Kisan Shankar Kathore
has submitted that such non-disclosure will result into the election
being materially affected. It is submitted that there is no perversity
in the findings recorded by the Trial Court and even assuming that
the Trial Court, has misread paragraph 83 and 86 of the judgment in
Krishnamoorthy, this Court can clarify the same while refusing to
interfere with the ultimate finding which does not suffer from any
perversity. In support of such proposition, the learned counsel has
placed reliance on the decision of the Constitution Bench of the
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Supreme Court in the case of Syed Yakoob Vs. K. S. Radhakrishnan
& Others 1. It is submitted that an error of law which is apparent on
the face of the record can be corrected by the Writ Court but not an
error of fact.
24. The learned counsel has submitted that the election of
the petitioner having been found to be invalidated, the Trial Court
was justified in declaring the first respondent as elected, as he was
the candidate having secured the second highest number of votes.
25. The learned counsel was at pains to point out that the
offences for which the petitioner is facing prosecution are under
Section 406 and 409 read with Section 34 of the IPC which invites
sentence of more than two years. It is submitted that this Court
while deciding the revision application challenging the order passed
by the Trial Court under Order VII Rule 11 of CPC, has held that
cognizance was taken by the Court and that finding having attained
finality cannot be revisited. Reliance is placed on the decision of the
Supreme Court in the case of R.R. Chari Vs. State of Uttar Pradesh 2
1AIR 1964 SC 477
2AIR 1951 SC 207
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and State of Karnataka and Anr. Vs. Pastor P. Raju 1 in order to submit
that taking cognizance does not involve any formal action, and
cognizance is taken once the Magistrate has applied his mind to the
facts about commission of the offence. It is submitted that the
impugned judgment does not suffer from any infirmity and the
petition be dismissed.
26. I have carefully considered the rival circumstances and
the submissions made. Following points arise in this petition for
determination.
(i) Whether the election of the petitioner is liable to be set
aside on the ground of non disclosure of the pending criminal
case/s by the petitioner, in the nomination form/affidavit,
amounting to undue influence and/or corrupt practice, vitiating the
election ?
(ii) If yes whether the first respondent is entitled to be
declared as elected in the place of the petitioner under section
16(3) of the Act ?
(iii) Whether the impugned judgment needs interference ? If
yes to what extent?
1(2006) 6 SCC 728
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27. Point No. (i)
The election of the petitioner is challenged under
section 16 of the Act. Section 16 if paraphrased would indicate that
it provides for a challenge to the election in the following
circumstances
I If the qualification of any person declared elected as a
councilor is disputed or
II if there is improper rejection of the nomination paper or
III improper reception or refusal of a vote or
IV if there is material irregularity in the election
proceedings or corrupt practice or
V any other thing materially affecting the result of the
election
28. In the present case the election is challenged on the
ground of the petitioner having furnished false, misleading and
incomplete information in the nomination form. In short according
to the first respondent the petitioner failed to disclose two criminal
cases namely RCC No.294/2015 and 4414/SS/2005 in the
nomination form in which the petitioner was facing prosecution for
offences involving moral turpitude. It is contended that it was
mandatory on the part of the petitioner to furnish true and correct
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information about the pending criminal cases. It is contended that
on account of the nondisclosure of the criminal cases the petitioner
is disqualified and the election is vitiated by reason of a material
irregularity in the election proceedings and corrupt practice. The
first respondent has placed reliance on the notification dated 1
September 2006 of the State Election Commission in this regard.
Admittedly a copy of the said notification is not produced on record.
That appears to be the main plank of the argument on behalf of the
petitioner. It is contended by the petitioner that strict rules of
pleadings apply to the election petition and in the absence of the
production of the copy of the said notification the election petition
could not have been allowed.
29. It has come on record that RCC No.4414/SS/2005 has
already been disposed of in the year 2009. Thus we are only
concerned with RCC No.294/2015. ( Old RCC No.690/2011). The
said case arose out of Crime no 231/2000 of PS Naupada under
section 406, 409 read with section 34 of IPC. That case was pending
before the Chief Judicial Magistrate (CJM) Thane in which the
petitioner was accused No.2. The nomination form (Exh.156) with
affidavit was filed by the petitioner on 3 February 2017 when the
said case was pending. It is also a matter of record that the
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petitioner only disclosed one criminal case as Case No.250 ( without
mentioning the year) in the nomination form. The petitioner
mentioned that the said case was pending before the Thane court
under section 143 and 145 in which the court had taken cognizance
on 27 January 2017. We are principally concerned with the non
disclosure of RCC No.294/2015 ( Old RCC No.690/2011) and the
effect thereof.
30. Clause 7 of the nomination form is relevant for the
purpose. It contains two parts. Part 7(a)which is relevant is in
vernacular.
31. It can thus be seen that it pertains to disclosure of
offence/s which would attract sentence of two years or more and
whether a chargesheet is filed or not in respect thereof. Part 7(b)
pertains to conviction, with which we are presently not concerned.
Admittedly the pendency of RCC No.294/2015 in which the
petitioner was facing prosecution for the offences under section 406
and 409 r/w section 34 of IPC has not been disclosed in the
nomination form and the affidavit. The petitioner has not disputed
the pendency of RCC No.294/2015 in which he is accused No.2. In
the written statement he claimed that he received the
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summons/notice in the said case after filing of the nomination form.
It is next contended that even otherwise it was not necessary for the
petitioner to disclose the said case as the court had not taken
cognizance or framed charge in it. In para 12 of the written
statement the petitioner however did not dispute that "every
candidate contesting an election is obliged to make true and correct
disclosure of all his details before the public at large so as to enable
the voters to make a meticulous decision as to in whose favour the
vote is to be cast".
32. It would now be necessary to refer to the evidence of
the petitioner. The petitioner has admitted that it is mandatory to
mention the criminal background in the nomination form as per the
election rules and the "Supreme Court decisions". He claimed that
he did not mention the said case in the nomination form as there
was no charge framed in the said case. He admitted the documents
at Exh.123, 124, 126, 127 and 128 which would clearly go to show
that the petitioner had appeared in the said case. Exh.128 for
instance is a copy of the exemption application filed on behalf of the
petitioner much prior to the filing of the nomination from. It can
thus be seen that the factum of the pendency of the said case under
section 406, 409 of IPC in which the petitioner was accused No.2
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and the petitioner being aware of the said case, prior to the filing of
the nomination form, is well established on record. The offences are
punishable with a sentence in excess of two years. The record also
discloses that the court had taken cognizance in the matter as
summons was issued and the petitioner had put in appearance. It is
now well settled that the court takes cognizance when the court
applies its mind to the prosecution case and the material produced
and proceeds against the accused. Framing of charge in warrant a
triable case (the offences under section 406 and 409 are warrant
triable) is a further stage where the accused is not discharged under
section 329 of the Code of Criminal Procedure ( where the charge is
found to be groundless) and under section 240 of the code the court
is of the opinion that there is ground for presuming that the
accused has committed the offence.
33. It is true that the ground on which the election is
assailed have to be properly pleaded. I have carefully gone through
the election petition and I find that the ground based on non
disclosure of the criminal antecedent has been adequately pleaded
in the petition. It is true that the burden to establish the ground/s
would lye on the candidate assailing the election. However it can
not be equated with the burden similar to one on the prosecution in
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a criminal case. In the present case as noticed earlier the petitioner
did not dispute that every candidate was under obligation to
disclose the criminal antecedent. He also did not dispute the
pendency of the RCC No.294/2015. The contention that he was not
aware of the said case prior to filing of the nomination form cannot
be accepted in view of the documents referred to above which were
confronted to the petitioner in the cross examination and have been
admitted. It also appears that a summons/notice was issued to the
petitioner which would indicate that the CJM had applied mind and
the cognizance was taken. The offences indeed invite sentence in
excess of two years. Thus the contention based on the want of
adequate pleadings and the failure to produce the notification dated
1 September 2006 in my view cannot be accepted more so when the
ground about non production was not raised before the trial court
nor it is raised in the petition. The ground appears to have been
pressed in service for the first time during the submissions at the bar.
That apart as per section 14(1) of the Act, the superintendence,
direction, control and conduct of the election to the corporations
vests in the State Election commission. The Commission in exercise
of the said powers has prescribed the form of nomination and
affidavit by orders from time to time which have been revised by
order dated 5 October 2015. The nomination form in this case is as
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prescribed by the Commission of which judicial notice can be taken.
For this reason also the ground based on the non production of the
Notification dated 1 September 2006 cannot be accepted.
34. The trial court has relied on the decision of the
Supreme Court in Krishnamoorthy and Kisan Kathore. The learned
counsel for the petitioner has submitted that the said decisions will
be inapplicable as they arose out of an election dispute under the
Representation of the Peoples Act. It is submitted that in the case of
Kisan Kathore there were statutory provisions which were found to
be not complied and in the election petition it was pleaded that the
same has materially affected the result of the election. It is
contended that the requirements of Section 100(1) (d) of the said
Act were complied in that case. It is pointed out that the learned
Trial Court in para 49 of the judgment has found that the petitioner
had not pleaded that the election is materially affected by the
alleged non disclosure.
35. In so far as the case of Krishnamoorthy is concerned it is
submitted that it was a case where the election was challenged on
the ground of corrupt practice under section 100(1)(b) of the Act of
1951. It is pointed out that the Trial Court in this case has refused to
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uphold the ground of corrupt practice and in any event the case of
Krishnamoorthy did not apply in this case.
36. Before dealing with the submissions, as raised it is
necessary to make a reference to the decision of the Supreme Court
in Union of India Vs. Association of Democratic Reforms 1. The
question involved in that case was whether, the voters have a right
to know relevant particulars of the candidate. The Supreme Court
referring to its earlier decisions found that right to vote is a part of
fundamental right to freedom of speech and expression, under
Article 19(1) (a) of the Constitution of India as a voter's speech or
expression in case of election would include casting of votes. For this
purpose information about the candidate to be selected is a must. It
has been held that the right to know the antecedents including
criminal past of the candidate contesting election for Member of
Parliament (MP) and Member of Legislative Assembly (MLA) is
much more fundamental and basic for the survival of democracy.
The Supreme Court in para 48 of the Judgment directed the Election
Commission to call for information on affidavit by issuing necessary
order in exercise of powers under Article 324 of the Constitution of
India, on the five aspect as referred to above. It is true that the said
1(2002) 5 SCC 294
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case pertained to the election of the MPs and the MLAs. In para 49,
the Supreme Court has noted that the Election Commission has from
time to time issued instructions/orders to meet the situation where
the field is unoccupied by legislation.
37. It appears that after the said decision, the Act of 1951
came to be amended in the year 2002 by introduction of Section
33A. It is true that there is no similar provision which could be
found in the Mumbai Municipal Corporation Act, 1988 ('Act of
1988'). However, as noticed earlier the Election Commission being
entrusted with the powers of superintendence, control and conduct
of the elections to the corporations, under section 14(1) of the Act
has issued the orders including the order dated 5 October 2015
prescribing the form incorporating the requirement of disclosure of
the criminal antecedents. Thus it cannot be accepted that there is no
statutory basis or requirement for disclosure made out in this case.
38. In the case of Kisan Kathore, the election of the
appellant was set aside by the High Court on account of non
disclosure on certain aspects as noted in the judgment. The Supreme
Court while upholding the same has noted the decision in
Association for Democratic Reforms to hold that the main reason for
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issuing the directions by the Supreme Court and the guidelines by
the Commission, pursuant thereto is that the citizens have a right to
know about the candidate including his/her criminal antecedents.
39. In Krishnamoorthy, the election was challenged on the
ground of non disclosure of full particulars of criminal cases at the
time of filling of nomination form as in the present case. The
Supreme Court found that it creates impediment in free exercise of
electoral right and the election is liable to be declared as null and
void. The court summed up the law in para 86 as under-
86. In view of the above, we would like to sum up
our conclusions :-
(a) Disclosure of criminal antecedents of a
candidate, especially, pertaining to heinous or serious
offence or offences relating to corruption or moral
turpitude at the time of filing of nomination paper as
mandated by law is a categorical imperative.
(b) When there is non-disclosure of the offences
pertaining to the areas mentioned in the preceding
clause, it creates an impediment in the free exercise of
electoral right.
(c) Concealment or suppression of this nature
deprives the voters to make an informed and advised
choice as a consequence of which it would come
within the compartment of direct or indirect
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interference or attempt to interfere with the free
exercise of the right to vote by the electorate, on the
part of the candidate.
(d) As the candidate has the special knowledge of
the pending cases where cognizance has been taken or
charges have been framed and there is a non-
disclosure on his part, it would amount to undue
influence and, therefore, the election is to be declared
null and void by the Election Tribunal under Section
100(1)(b) of the 1951 Act.
(e) The question whether it materially affects the
election or not will not arise in a case of this nature.
(Emphasis supplied)
40. It is true that both, the case of Kisan Kathore and
Krishnamoorthy arose out of the Act of 1951. However in my
humble opinion the ratio would be applicable with equal force in as
much as the local authorities such as corporations are also
democratic institutions of local self governance. It would be
atrocious to assume that the requirement of such disclosure will not
apply only because the decision in Kisan Kathore and
Krishnamoorthy are rendered in the context of elections under the
Act of 1951. It will lead to a situation where a voter exercising his
franchise at the election of a MP and MLA will have a right to know
the criminal antecedents of the candidate but will not have any such
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right at the election of a councilor. It is necessary to note that I have
already dealt with ground of non production of the
notification/order dated 1 September 2006 and the absence of
statutory requirement none of which can be accepted. Thus in my
considered view the principles and the spirit of the aforesaid
decisions would equally apply to the present case.
41. It is necessary to note that there is a specific averment
in para 8 of the petition that the non disclosure of the criminal cases
has materially affected the result of the election.
42. Thus the point No.1 is answered accordingly. The
election of the petitioner is liable to be set aside on account of
nondisclosure of the Criminal Case No.294/2015 which amounts to
undue influence which is an irregularity affecting the result of the
election.
43. Point No. (ii)
This takes me to the relief which can be granted in
addition to the setting aside of the election. Precisely the question is
whether the first respondent can be declared to be elected.
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44. The learned counsel for the first respondent submitted
that section 18 read with subsection 5 of section 403 of the Act of
1949 clothes the Trial Court to declare the candidate securing
second highest votes to be deemed to be elected in the place of the
candidate whose election is set aside. He submits that the Trial
Court placing reliance on the decision of this court in Mrs. Geeta
Kisan Gore Vs. State of Maharashtra & Ors.1 has rightly declared the
first respondent to be elected in the place of the petitioner.
45. Mr Dhakephalkar the learned Senior counsel for the
petitioner has placed reliance on the decision of the Supreme Court
in Vishwanatha Reddy Vs. Konappa Rudrappa Nadgouda and Anr. 2,
and the decision in
Dnyaneshwar Rambhau Barabudhe Vs. Returning Officer /Dy.
Collector (EGS), Amravati & Ors.4. He submits that the first
respondent could not have been declared elected by 'throwing away'
the votes cast in favour of the petitioner. He therefore submitted that
the learned Judge was in error in declaring the first respondent
elected.
12003(4) ALL MR 548
2AIR 1969 SC 604
3AIR 1993 SC 95
41998 (4) Bom.C.R. 578
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46. Section 18 and subsection 5 of section of section 403 of
the Act of 1949 which are relevant for the purpose read thus.
18. (1) If at any general elections or an election
held to fill a casual vacancy, no councilor is elected or
an insufficient number of councilors are elected or the
election of any or all of the councilors is set aside
under this Act and there is no other candidate or
candidates who can be deemed to be elected in his or
their place, the (State Commissioner) shall appoint
another day for holding a fresh election and a fresh
election shall be held accordingly.
(2) A councilor elected under this section shall be
deemed to have been elected to fill a casual vacancy
under Section 15.
403 - (1) -----
(2) -----
(3) -----
(4) -----
(5) If an application is made under Section 16
that any particular candidate (other than the
candidate declared to have been elected) shall be
deemed to have been elected, then the returned
candidate or any other party may give evidence to
prove that the election of the person in whose favour
such declaration is sought would have been void if he
had been declared elected and an application had
been presented calling in question his election.
If the Judge is of opinion-
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(i) that in fact any candidate in whose favour
the declaration is sought has received a majority of
the valid votes, or
(ii) that but for the votes obtained by the
returned candidate by corrupt practices, such
candidate would have obtained a majority of the valid
votes (the judge shall after declaring the election of
the returned candidate to be void declare the
candidate in whose favour the declaration is sought to
have been duly elected.
(6) ----
(7) ----
47. A conjoint reading of the aforesaid provisions would
show that in appropriate case the Court is clothed with jurisdiction
to declare the other candidate as elected. There cannot be any
manner of dispute that such power can be exercised only in
accordance with the statutory provisions. To that extent the learned
Senior Counsel for the petitioner is right that such power cannot be
exercised for equitable reasons, for instance saving of election
expenses or for any other similar reason. He pointed out that the
reliance placed by the learned Trial Court on the decision in Geeta
Gore is misplaced as that case arose under the provisions of the Act
of 1888 where there is specific enabling provision to declare the
immediate rival who has secured the next highest number of votes
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as elected. He submitted that the learned Trial Court was in error in
properly appreciating the ratio in the case of Dnyneshwar
Barabudhe and D.K.Sharma.
48. On the contrary, it is submitted by Mr Kulkarni the
learned counsel for the first respondent that the proposition that
unless the voters are informed about the disqualification of the
candidate, at the time of election, when there are more that two
candidates in the fray, is not an absolute proposition for declaring
the candidate receiving second highest votes as elected.
49. In the case of Konappa Nadgouda the Supreme Court
has held thus
If the number of candidates validly nominated is equal
to the number of seats to be filled, no poll is
necessary. Whereby an erroneous order of the
Returning Officer poll is held which, but for that
order, was not necessary, the Court would be justified
in declaring those contesting candidates elected, who,
but for the order, would have been declared elected.
Where there are more than two candidates in the field
for a single seat, and one alone is disqualified, on
proof of disqualification all the votes cast in his favour
will be discarded and the candidate securing the next
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highest number of votes will be declared elected. In
such a case, question of notice to the voters may
assume significance, for the voters may not, if aware
of the disqualification have voted for the disqualified
candidate.
50. In the case of D.K. Sharma, the respondent Ramsharan
Yadav was declared elected to the Bihar Legislaticve Assembly in
February 1990 in which the appellant D.K.Sharma was the
immediate rival having secured second highest votes. The appellant
challenged the election of Ramsharan Yadav on the ground that his
nomination was illegally accepted by the returning officer. It was
claimed that in the previous assembly election in June 1977 the
election of the first respondent Ramsharan Yadav was set aside on
the ground of commission by him of corrupt practice and he had
incurred disqualification for a period of six years which was to
expire on 30 October 1990. It was thus claimed that the acceptance
of the nomination paper in the election in February 1990 (which
was subject matter of challenge) was illegal. It so happened that
during pendency of the said election petition the President of India
in exercise of powers under subsection 3 of section 8A of the Act of
1951, issued a notification disqualifying the respondent Ram Sharan
Yadav for a period of six years. Thus the relief in the election
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petition was confined to the appellant being declared as elected
having secured second highest votes. Admittedly there were
eighteen other candidates at the said election.
51. In such circumstances taking a cue from the decision in
Konappa Nadgouda the appellant led evidence to show that the
voters were given sufficient notice and they were aware of the
disqualification. It was therefore contended that the votes cast in
favour of Ram Sharan Yadav have to regarded as votes 'thrown
away'. The High Court on facts found that the evidence was not
sufficient to hold that the voters who had cast their votes in favour
of Ram Sharan Yadav had done so after having noticed the
disqualification. The Supreme Court concurred with the finding of
fact so recorded and dismissed the appeal.
52. It can thus be seen that the legal position is well settled.
In order to treat the votes cast in favour of the successful candidate
(whose election is set aside for having incurred a disqualification
and/or improper acceptance of the nomination paper) it ought to be
proved that the voters had adequate notice and were aware of the
disqualification and inspite of such knowledge voted for the
candidate. This requirement of notice to the voters arises only where
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there are more contestants than two. Thus such a requirement of the
notice would not arise where there are only two candidates in the
fray. This is because in such a case if the Trial Court finds that the
nomination of the successful/elected candidate was wrongly
accepted, there would only be one candidate left in the fray not
requiring any election.
53. It is not possible to accept the contention on behalf of
the first respondent that the aforesaid proposition as laid down in
the case of Konappa Nadgouda which has been followed in the case
of D.K.Sharma and relied upon by this court in the case of
Dnyaneshwar Barabudhe, is not an absolute proposition. It is clear
that it is the well settled principle to which no exception is shown to
be carved out in the decision in Konappa Nadgouda except where
there are only two candidates in the fray. No decision has been
brought to my notice that the said proposition is not an absolute
proposition or that it admits of any exception and if so in what
circumstances.
54. Coming to the present case it was a multicornered
contest involving more than two candidates. The First respondent
has neither pleaded nor there is any evidence to show that the
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voters were put to notice about the disqualification or otherwise of
the petitioner. Thus although the election of the petitioner is set
aside the votes polled in his favour cannot be treated as votes
'thrown away' there by entitling the first respondent to be declared
as elected in the place of the petitioner.
55. I find that the reading of the decision of this court in
Dnyaneshwar Barabudhe by the learned Trial Court is entirely
wrong. In that case the concerned ward of Amaravati Municipal
Corporation was reserved for candidate belonging to Other
Backward Class (OBC). It was a multicornered contest having more
than two candidates in the fray. In that case the election of the
third respondent was challenged by the second on the ground that
the third respondent was not belonging to the OBC category. The
second respondent also sought a declaration about his election in
the place of the third respondent as the second respondent had
secured the second highest number of votes. It appears that the
election petition was allowed and the election of the third
respondent was set aside on the ground as urged and the third
respondent was declared elected in his place on the ground that the
election would entail further expenses by the candidates and the
corporation which I the opinion of the trial court could be avoided
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by declaring the second respondent as elected thereby obviating the
need for a election. It appears that the third respondent did not
challenge the judgment by which his election was set side. The
petitioner before the High Court was the original respondent no 8
before the trial court who took exception to the part of the judgment
by which the second respondent (the election petitioner) was
declared elected.
56. This court found that the reason for which the second
respondent was declared elected, namely to save the expenses for
reelection was not a valid ground. This court placing reliance on the
decision of the Supreme Court in Konappa Nadgouda also found
that the second respondent ( the election petitioner) had not led any
evidence whatsoever to show that the voters were given notice
about the disqualification of the third respondent. In that view of
the matter the judgment declaring the second respondent as elected
was set aside.
57. The trial court while distinguishing the said judgment
has observed that the declaration of election was not granted as the
seat was reserved for a OBC candidate and the second highest
candidate was a non OBC candidate which is factually incorrect.
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58. The reliance by the learned Trial Court on the decision
in Geeta Gore is equally misplaced. That was a case of an election of
a councilor of the Brihan Mumbai Corporation under the Act of
1888 The concerned ward was reserved for a candidate belonging to
OBC women category. During the pendency of the election petition
the Caste Scrutiny Committee had invalidated the caste claim of the
petitioner Geeta Gore which was upheld by this court. Thus the only
question in the election petition was about the relief of declaration
of the respondent No.4 ( the election petitioner ) as elected in the
place of Geeta Gore. This court placing reliance on section 33(2) of
the Act of 1888 found that the language of the said section is
explicitly clear and unequivocal under which if the Chief Judge of
the Small Causes Court finds that the elected councilor is
disqualified and his election is declared null and void, the Chief
Judge shall direct the candidate securing the next highest votes to
be deemed to have been elected.
59. The learned Senior Counsel for the petitioner is right
that there is no similar provision which could be found in the Act of
1949. Thus the relief of declaration granted cannot be sustained on
the basis the judgment in the case of Geeta Gore which is
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inapplicable in this case. In my considered view, the said
declaration could have been granted in the absence of a finding as
to satisfaction of the requirements of section 403(5) of the Act of
1949. The point No.2 is answered accordingly.
60. The impugned order needs to be partly modified. In the
result, the petition is partly allowed. The part of the judgment
declaring the first respondent elected as a Councilor from Ward
No.12-D is hereby set aside. The part of the judgment setting aside
the election of the petitioner from the said ward is hereby
confirmed. Rule is partly made absolute in the aforesaid terms with
no order as to costs.
61. At this stage, the learned counsel for the Petitioner
seeks extension of the interim relief which is operating from 15 April
2019.
62. Mr. Kulkarni, the learned counsel for the first
respondent has strongly opposed the same. He points out that there
is now a concurrent finding by which the election of the petitioner
has been set aside and considering the balance tenure left, it would
not be appropriate to continue the interim relief.
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63. Mr. Apte, the learned Senior counsel for the respondent
No.6 has left it to the discretion of the Court.
64. Having regard to the fact that the interim relief is
operating from 15 April 2019, the same is extended for a period of
six weeks from today.
C.V. BHADANG, J.
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