Bombay High Court
Jagdishchandra Ramesh Valvi vs Latabai Chandrakant Sonawane And ... on 3 September, 2024
2024:BHC-AUG:20257
1 Appln.9.23&5.24
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION IN EP NO. 9 OF 2023 (Exhibit 11)
IN
ELECTION PETITION NO.11 OF 2019
JAGDISHCHANDRA RAMESH VALVI
VERSUS
LATABAI CHANDRAKNT SONAWANE AND ORS
...
WITH
...
APPLICATION IN EP NO. 5 OF 2024 (Exhibit 23)
IN
ELECTION PETITION NO.11 OF 2019
JAGDISHCHANDRA RAMESH VALVI
VERSUS
LATABAI CHANDRAKANT SONAWANE AND OTHERS
...
Advocate for Election Petitioner:
Mrs. Priyandra G. Sontakke & Mr. Gajanan K. Sontakke
...
Advocate for the Applicant at Exhibit 11 / Respondent No.1 in EP /
Returned Candidate: Mr. Mahesh S Deshmukh
Advocate for the Applicant at Exhibit 23 / Respondent No.5 in EP:
Mr. Rahul R. Karpe
...
CORAM : ARUN R. PEDNEKER, J.
Date : 03.09.2024
ORDER:
1. The present Election Petition is filed challenging the
election of the returned candidate / respondent no.1 as the Member
of Maharashtra Legislative Assembly from 10-Chopda (S.T.)
2 Appln.9.23&5.24
Assembly Constituency, in the State of Maharashtra. The returned
candidate / respondent no.1 claims to belonging to "Tokre Koli",
Scheduled Tribe. In The Constitution (Scheduled Tribe) Order, 1950,
Part IX - Maharashtra, "Tokre Koli" is mentioned at Serial No.28.
2. The elections to the Maharashtra Legislative Assembly
were held on 21.10.2019, counting was held on 24.10.2019,
returned candidate belonging to a political party Shivsena was
declared elected. The election petitioner belongs to the Nationalist
Congress Party. The elected candidate got 78137 votes, whereas the
election petitioner receives the second highest 57608 votes.
3. Although, the election was held in the year 2019 and
the petition is filed within limitation, the matter was not moved with
urgency and was pending notice to all the respondents.
4. During the pendency of the Election Petition before this
court, the caste certificate issued to the returned candidate was
invalidated and the same is confirmed upto the Hon'ble Supreme
Court. After the rejection of the caste validity certificate of the
returned candidate was confirmed by the Hon'ble Supreme Court,
the writ petition was filed before the Division Bench of this Court for
3 Appln.9.23&5.24
unseating the returned candidate by invoking powers of this court.
In Writ Petition No.12336 of 2022, dated 13.01.2023, this court at
para 3 has observed as under:
"3. By invoking the powers of this Court under Article
226 of the Constitution of India, the petitioner is
seeking a declaration about the intervenor who has
been elected as a member of the State Legislative
Assembly from 10 - Chopda (ST) constituency in the
elections held in 2019, was not qualified to file her
nomination from the reserved category when her
scheduled tribe certificate has been cancelled and the
decision has reached finality up to the Supreme Court."
This court in Writ Petition No.12336 of 2022, dated
13.01.2023, at para 12 and 15 has observed as under and dismissed
the petition:
"12. ...In the matter in hand, the petitioner has
already filed an election petition and should have
waited for the result instead of circuitously seeking the
same relief by requesting this Court to exercise the
powers under Article 226. For this reason alone, the
petition is liable to be dismissed.
15. Consequently, merely because the scheduled tribe
certificate of the intervenor has been cancelled and the
decision has reached finality, the consequences are not
automatic as is contemplated under section 10 and 11
of the Maharashtra Act No. XXIII of 2001. The ordeal of
resorting to the election petition under section 80-A of
the R.P. Act will have to be undergone for unseating a
returned candidate to State Legislative Assembly who
was not qualified to take part in the election to the
4 Appln.9.23&5.24
Legislative Council which specifically lays down that no
election shall be called in question except by an election
petition presented in accordance with the provisions
under that Act."
The SLP filed against the above order of the Division
Bench in Writ Petition No.12336 of 2022, dated 13.01.2023 is also
dismissed.
5. After invalidation of the caste certificate of respondent
no.1 / returned candidate this Election Petition is taken up with
some urgency. Respondent no.5 was served on 23.06.2023 and
respondent no.7 was served by paper publication on 19.01.2024.
6. Respondent no.1 / returned candidate filed an
application bearing number Application in EP No.9 of 2023, Exhibit
11, under Order VII Rule 11 of The Code of Civil Procedure, 1908
(CPC) read with Section 82 of the Representation of the People Act,
1951 (R.P. Act) for dismissal of the election petition. The respondent
no.5 on being served on 23.06.2023, appeared and also filed
Application in EP No.5 of 2024, Exhibit 23, for dismissal of the
election petition. It is contended in the application at Exhibit 11 as
under:
5 Appln.9.23&5.24
"A) That, Election Petition proper as well as affidavit
filed alongwith it do not specify raises/sets out any
ground/grounds specified under sub section (1) of Sec
100 and Sec 101 as compulsorily required under Sec. 81
of The Representation of the People Act, 1951 while
presenting Election Petition.
B) That, verification made by petitioner to the
Election Petition proper as well as affidavit filed
alongwith petition proper is not made as compulsorily
required under clause (c) of sub section (1) of section
83 of The Representation of the People Act, 1951.
C) That, in view of the fact that affidavit filed under
Form 25 of the Conduct of Election Rules, 1961 by the
petitioner the same attracts clause (b) of sub section (1)
of Section 83 as well as proviso to clause (c) of sub
section (1) of section 83 of The Representation of the
People Act, 1951 and Rule 94-A of Conduct of Elections
Rules, 1961 claiming/ alleging corrupt practice by the
petitioner against respondent no.1. Perusal of affidavit
under Form 25 filed by the petitioner suggest purported
allegation of corrupt practice by respondent no.1, as
such is not an affidavit as compulsorily required by
proviso to Clause (c) of Sub Section (1) of Section 83 of
The Representation of the People Act, 1951.
D) That, concise statements of the material facts on
which the petitioner relies, compulsorily requires by
Clause (a) of Sub Section (1) of Section 83 of The
Representation of the People Act, 1951 being not
specifically contained in the Election Petition proper as
well as affidavit filed alongwith it, it suffers for non
compliance and / or violation of mandatory provisions
under Chapter II of The Representation of the People
Act, 1951 and prescribed procedure under the Conduct
of Elections Rules, 1961.
6 Appln.9.23&5.24
E) That, affidavit made to the Election Petition
proper as well as affidavit filed along with by the
petitioner dated 04.12.2019 is no affidavit as required
by law.
F) That, the contents raised which claimed to be
legal and factual submissions/ pleadings in para no.
XXIV to XXXIII as per verification of Election Petition
proper are vague, confusing which do not specify
anything as required by the provisions of The
Representation of the People Act, 1951 and the Conduct
of Election Rules, 1961.
G) That, the Election Petition filed by petitioner
suffers from non disclosure of mandatory declaration, in
as much as suffers due to suppression of material facts
while presenting Election Petition under Section 80 and
81 of The Representation of the People Act, 1951.
H) That, additional relief claimed by the petitioner,
particularly relief claimed under Clause (B) under para
no. XLII of Election Petition proper for declaration of
petitioner to be duly elected to the Office of Member of
Maharashtra Legislative Assembly from 10-Chopda
Assembly Constituency, in the State of Maharashtra
declared on 24.10.2019 is not claimed by fulfilling
mandatory requirement as required under the provision
of The Representation of the People Act, 1951 and the
Conduct of Elections Rules, 1961.
I) That, reference of Section 100 of The
Representation of the People Act, 1951 in various
Paragraphs of Election Petition proper as well as
affidavit filed alongwith it do not specify any particular
clause of Sub Section (1) under Section 100 of The
Representation of the People Act, 1951, as such no
compliance being made by the petitioner while
7 Appln.9.23&5.24
presenting Election Petition which is mandatory and
compulsory under Section 81 of The Representation of
the People Act, 1951, instant Election Petition suffers for
non compliance and / or violation of mandatory
prescribed procedure.
J) That, the source of information and collection of
documents as disclosed and claimed in the verification
of Election Petition proper as well as affidavit filed
alongwith it is not a source of information as well as
collection of documents relied and filed by the Petitioner
and that too without submitting any proof to that effect
alongwith Election Petition proper.
2. In view of above reasons and grounds, there is
non compliance as well as violation of mandatory
prescribed procedure while presenting Election Petition
by the Petitioner as required under Chapter Ii of The
Representation of the People Act, 1951 and Conduct of
Elections Rules, 1961, as such instant Election Petition
presented by the Petitioner is not maintainable,
entertainable and accordingly liable to be dismissed /
rejected under Order VII Rule 11 of The Code of Civil
Procedure, 1908 and accordingly it be dismissed with
costs."
7. Heard Mr. Mahesh S. Deshmukh, learned counsel for the
returned candidate / applicant in Exhibit 11 and respondent no.1 in
election petition. The learned counsel in addition to the grounds
raised in the application at Exhibit 11, orally and by filing written
submissions, submitted that for the elections to the State Legislature,
Chapter-II of the R.P. Act deals with the qualification of the
membership of State Legislature and particularly Section 5(a) of the
8 Appln.9.23&5.24
R.P. Act, which provides for qualification to contest elections from
the reserved seat of the Scheduled Caste (SC) or Scheduled Tribe
(ST), whereby such candidate is to be member of any of those castes
or tribes and an elector for any assembly constituency in that State.
Mr. Deshmukh, learned counsel further submits that
Section 33(2) states that, in respect of seat reserved a candidate
shall not be deemed to be qualified to be chosen to fill that seat
unless his nomination paper contains a declaration by him specifying
that he belongs to the particular caste or tribe of SC or ST of the
State.
The learned counsel submits that conjoint reading of
above referred provisions of Section 5(a) and 33(2) of the R.P. Act, in
relation to election to State Legislature, wherein a particular
constituency is reserved either for SC or ST, the candidate is obliged
only to make a declaration that he / she belong to specified
scheduled caste or scheduled tribe, as the case may be and nothing
more. The R.P. Act does not contain provision in addition to
declaration to be made by candidate about his specified caste or tribe
notified as SC or ST in relation to the concerned State.
It is submitted that Section 36(2) of the R.P. Act controls
power of Returning Officer to reject nomination. Section 36(2)(a) of
9 Appln.9.23&5.24
the R.P. Act empowers the Returning Officer to reject the nomination
in case candidate either is not qualified or is disqualified for being
chosen to fill the seat under Article 84, 102, 173 and 191 of the
Constitution of India or Part-II of the R.P. Act i.e. qualifications and
disqualifications of membership or as per Section 36(2)(b) if there is
failure to comply with any of the provisions of Section 33 or
Section 34.
It is further submitted that, the instant case relates to
qualification of membership of the legislative assembly i.e. Section 5
of the R.P. Act read with Article 173 (c) of the Constitution of India.
It is further submitted that conjoint reading of Section
5(a) and Section 33(2) of the R.P. Act clearly postulates that for a
candidate contesting election for reserved seat, only declaration
about his / her caste or tribe which is notified as SC or ST needs to
be made by the candidate contesting election from reserved seat.
It is further submitted that, in view of Section 5(a) read
with Section 33(2) of the R.P. Act and Rule 4 together with Part-III of
'Form 2B' creates only obligation over the candidate contesting the
reserved seat to make a declaration about his caste / tribe. There is
no further requirements of producing caste certificate or caste
validity certificate. Once, such a declaration is made by the candidate
10 Appln.9.23&5.24
as contemplated in Part-III of 'Form 2B', the returning officer does
not have jurisdiction to inquire into a particular caste or tribe of the
candidate so as to reject the nomination.
8. Mr. Deshmukh, learned counsel for the returned
candidate / applicant in Exhibit 11 and respondent no.1 in election
petition relies upon the following judgments:
[1] Kanimozhi Karunanidhi Vs. A. Santhana Kumar &
Ors., AIR OnLine 2023 SC 368
[2] Kanimozhi Karunanidhi Vs. A. Santhana Kumar &
Ors., [2019] 0 Supreme (Mad) 2190
[3] Khan Mohammed Arif Lallan Vs. Dilip Bhausaheb
Lande, Application (L) No.20734 of 2021 in EP No.27
Of 2019
[4] Ram Sukh Vs. Dinesh Aggarwal, AIR 2010 SC 1227
[5] Anil Vasudev Salgaonkar Vs. Naresh Kushali
Shigaonkar, 2019 AIR SCW 6812
[6] V. Narayanaswamy Vs. C.P. Thirunavukkarasu, AIR
2000 SC 694
[7] Azhar Hussain Vs. Rajiv Gandhi, AIR 1986 SC 1253
[8] Hardwari Lal Vs. Kanwal Singh, AIR 1972 SC 515
[9] Samant N. Balakrishna, etc. Vs. George Fernandez
and others etc., AIR 1969 SC 1201
[10] Pendyala Venkata Krishna Rao Vs. Pothula Rama
Rao & Others, 2005 SCC OnLine AP 99
[11] Karim Uddin Barbhuiya Vs. Aminul Haque Laskar
and others, I.A. (Civil)/1278/2021, Dated 26.04.2023
of the Gauhati High Court
[12] Karim Uddin Barbhuiya Vs. Aminul Haque Laskar
and others, AIR 2024 SC 2193
[13] Sopan Sukhdeo Sable and others Vs. Assistant
Charity Commissioner and others, (2004) 3 SCC 137
[14] Dr. Sharadchandra s/o Ganpatrao Wankhede Vs.
Raosaheb S/o. Dadarao Danve and others, EP/2/2019
with connected petition, Dated 05.07.2024 of Bombay
High Court, Aurangabad Bench
11 Appln.9.23&5.24
9. Mr. Rahul R. Karpe, learned counsel for the applicant in
Exhibit 23 / respondent no.5 in election petition has adopted the
submissions of Mr. Deshmukh in support of his application filed
under Order 7 Rule 11 of the Code of Civil Procedure, 1908.
10. Mrs. Priyandra G. Sontakke, learned counsel appearing
for the election petitioner submits that the election petitioner has
filed his say to the application at Exhibit 11 of the returned
candidate under Order 7 Rule 11 and it is contended in the reply at
Exhibit 13 that the petitioner filed the election petition in
compliance with the provisions of Section 81, 82 and 117 of the R.P.
Act and further in compliance of the provisions of Conduct of
Elections Rules, 1961. It is contended that returned candidate was
not qualified in terms of Section 5(a) of the R.P. Act. Whereas the
election petitioner belongs to the Scheduled Tribe category and has
secured second highest vote in the election.
It is contended that the returned candidate does not
belongs to the category on which he got elected, as such, her
nomination form is improperly accepted and , thus, the election is
materially affected as set out in Section 100(1)(d)(i) of the R.P. Act.
It is stated that ground No.XV to XIX and the annexed
document at Exhibit K indicates that grounds as specified under Sub
12 Appln.9.23&5.24
section 1(a) of Section 100 and Section 101 as required under
Section 81 of the R.P. Act are made out.
The petitioner specifically contends that the petitioner
filed the election petition taking the recourse to the grounds
specified in Section 100(1)(a) of the R.P. Act.
It is further submitted that election petitioner in terms of
grounds set out in the petitioner bearing No.XXXIII with respect to
declaring the petitioner as elected candidate being second highest in
securing the votes after the returned candidate, as such, the
petitioner has set out grounds under Section 100(1)(a) and Section
101 of the R.P. Act.
It is submitted that there are no allegations of corrupt
practice made in the election petition and no separate affidavit is
required in Form 25. It is also contended that the petitioner filed the
separate affidavit in support of the election petition commenced
from page no.22 of the petition is in support of the election petition
and not the affidavit in form 25 as set out in proviso of Clause (c) of
Sub Section (1) of Section 83 of the R.P. Act. The word Form 25
mentioned at page no.22 is inadvertent act on the part of the
petitioner.
13 Appln.9.23&5.24
It is also contended that the election petition is not
based on the allegations of corrupt practice and based only on
Section 100(1)(a) and Section 101 of the R.P. Act. As per Section 83
of the R.P. Act, the verification as executed by the petitioner is
sufficient for the pleadings of the election petition and there is no
allegations of corrupt practice and, as such, there is no necessity to
either execute the separate affidavit in support of election petiton
and or to file the affidavit in Form 25 of the Election Rules. The Form
25 affidavit is not applicable to the facts of the case.
It is also contended that the petitioner has filed the
concise statement of the material facts, on which, the petitioner
relies.
The petitioner has contended that he has pleaded
factual and legal grounds in the election petition and the factual /
legal grounds are mentioned in the verification of the election
petition. It is stated that the petitioner has specifically pleaded that
the petitioner solicited the documents from the scrutiny committee
and the same are duly supplied by the scrutiny committee vide
covering letter. It is specifically averred in the reply that the
petitioner does not claim the disqualification of respondent no.1 on
the ground of corrupt practice and the disqualification prayed by the
14 Appln.9.23&5.24
petitioner is on the ground of qualification of respondent no.1 as set
out in Section 5(1)(a) and Section 33(2) of the R.P. Act read with
Article 173(c) of the Constitution of India.
11. Mrs. Sontakke, learned counsel for the petitioner relied
upon the following Judgments:
[1] Thangjam Arunkumar Vs. Yumkham Erabot Singh
and others, 2023 DGLS (SC) 912,
[2] A. Manju Vs. Prajwal Revanna @ Prajwal R. and
others, 2022 AIR (SC) 196
[3] Harkirat Singh Vs. Amrinder Singh, 2006 AIR (SC)
[4] Sardar Harcharan Singh Brar Vs. Sukh Darshan
Singh, 2005 AIR (SC) 22
[5] G. M. Siddeshwar Vs. Prasanna Kumar, 2013 AIR
(SC) 1549
[6] Saritha S. Nair Vs. Hibi Eden, 2021 AIR (SC) 483
[7] Vishwanatha Reddy Vs. Konappa Rudrappa
Nadgouda, 1969 AIR (SC) 604
[8] Kunti W/o. Shri Lalit Mahanand Vs. The Returning
Officer, Nagar Panchayat, Bagbahara and others, Civil
Revision No.168 of 2012 (High Court of Chhattisgarh at
Bilaspur)
12. Having considered the rival submissions, the question
that arises for consideration is, whether the petitioner has made out
the ground for deciding the Election Petition or the petition needs to
be dismissed at the outset for non compliance of mandatory
15 Appln.9.23&5.24
provisions under The Representation of the People Act, 1951 and the
Constitution of India.
13. At the outset, it is necessary to note the relevant
provisions of The Representation of the People Act, 1951.
SECTION 5(a)
"Section 5 - Qualifications for membership of a
Legislative Assembly.-
A person shall not be qualified to be chosen to fill a seat
in the Legislative Assembly of a State unless --
(a) in the case of a seat reserved for the Scheduled
Castes or for the Scheduled Tribes of that State, he is a
member of any of those castes or of those tribes, as the
case may be, and is an elector for any Assembly
constituency in that State;"
SECTION 33(2)
"33. Presentation of nomination paper and requirements
for a valid nomination
(1) ...
(1A) ...
(a) ...
(b) ...
(c) ...
(2) In a constituency where any seat is reserved, a
candidate shall not be deemed to be qualified to be
chosen to fill that seat unless his nomination paper
contains a declaration by him specifying the particular
caste or tribe of which he is a member and the area in
relation to which that caste or tribe is a Scheduled Caste
or, as the case may be, a Scheduled Tribe of the State."
16 Appln.9.23&5.24
SECTION 36(2)(a)
"Section 36 - Scrutiny of nominations.-
(1) ...
(2) The returning officer shall then examine the
nomination papers and shall decide all objections which
may be made to any nomination and may, either on
such objection or on his own motion, after such
summary inquiry, if any, as he thinks necessary, reject
any nomination on any of the following grounds :--
(a) that on the date fixed for the scrutiny of
nominations the candidate either is not qualified or is
disqualified for being chosen to fill the seat under any of
the following provisions that may be applicable,
namely:--
Articles 84, 102, 173 and 191,
Part II of this Act and sections 4 and 14 of the
Government of Union Territories Act, 1963 (20 of
1963); or
(b) that there has been a failure to comply with any of
the provisions of section 33 or section 34; or
(c) that the signature of the candidate or the proposer
on the nomination paper is not genuine."
SECTION 100(1)(a) & (d)
"Section 100 - Grounds for declaring election to be void
(1) Subject to the provisions of sub-section (2) if the
High court is of opinion-
17 Appln.9.23&5.24
(a) that on the date of his election a returned candidate
was not qualified, or was disqualified, to be chosen to
fill the seat under the Constitution or this Act or the
Government of Union Territories Act, 1963; or
(b) ...
(c) ...
(d) that the result of the election, in so far as it concerns
a returned candidate, has been materially affected-
(i) by the improper acceptance of any nomination, or
(ii) ...
(iii) ...
(iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders
made under this Act,
the High Court shall declare the election of the returned
candidate to be void.
..."
SECTION 101
"Section 101 - Grounds for which a candidate other
than the returned candidate may be declared to have
been elected
If any person who has lodged a petition has, in addition
to calling in question the election of the returned
candidate, claimed a declaration that he himself or any
other candidate has been duly elected and the High
Court is of opinion-
(a) that in fact the petitioner or such other candidate
received a majority of the valid votes; or
18 Appln.9.23&5.24
(b) that but for the votes obtained by the returned
candidate by corrupt practices the petitioner or such
other candidate would have obtained a majority of the
valid votes,
the High Court shall, after declaring the election of the
returned candidate to be void declare the petitioner or
such other candidate, as the case may be, to have been
duly elected."
14. The relevant provisions of The Constitution of India in
this case is Article 173(c)
"Article 173 - Qualification for membership of the State
Legislature
A person shall not be qualified to be chosen to fill a seat
in the Legislature of a State unless he
(a) ...
(b) ...
(c) possesses such other qualifications as may be
prescribed in that behalf by or under any law made by
Parliament."
15. The relevant provision of The Code of Civil Procedure,
1908 is Order VI Rule 15:
"15. Verification of pleadings
(1) Save as otherwise provided by any law for the
time being in force, every pleading shall be verified at
the foot by the party or by one of the parties pleading or
by some other person proved to the satisfaction of the
Court to be acquainted with the facts of the case.
19 Appln.9.23&5.24
(2) The person verifying shall specify, by reference to
the numbered paragraphs of the pleading, what he
verifies of his own knowledge and what he verifies upon
information received and believed to be true.
(3) The verification shall be signed by the person
making it and shall state the date on which and the
place at which it was signed.
(4) The person verifying the pleading shall also
furnish an affidavit in support of his pleadings."
16. FORM 2B of The Conduct of Elections Rules, 1961 is
reproduced as under:
FORM 2B
(See rule 4)
NOMINATION PAPER
Election to the Legislative Assembly of............................................................. (State)
Recent stamp size
(2cmX2.5cm)
photograph in
white/off white
background with full
face view to be
attached
STRIKE OFF PART I OR PART II BELOW WHICHEVER IS NOT APPLICABLE
PART III
...
* I further declare that I am a member of the.............................................................
**Caste/tribe which is a scheduled ***caste/tribe of the State of................................... in
relation to......................................... (area) in that State.
...
20 Appln.9.23&5.24
17. The nomination papers filed by the returned candidate
is at page no.137 onwards of the Election Petition, wherein the
returned candidate at page 141 has given a declaration as under:
"*मी आणखी असे प्रतिज्ञापन करतो कि, मी टोकरे कोळी या
**जमातीचा उमेदवार असून ती जमात महाराष्ट्र राज्य (क्षेत्र) क्षेत्राच्या
संबंधातील महाराष्ट्र राज्य राज्याची **अनुसचि
ू त जमात आहे."
18. With regard to the submissions of the learned counsel
for the applicant that the material facts are not pleaded and in
absence of material facts, the petition is not maintainable, the law on
the subject is discussed in the case of Anil Vasudev Salgaonkar Vs.
Naresh Kushali Shigaonkar, (2009) 9 SCC 310, wherein it is held
that failure to state even a single material fact will entail dismissal of
the election petition. Para 61, which summarizes the legal position is
reproduced below:
"61. The legal position has been crystallised by a series
of the judgments of this Court that all those facts which
are essential to clothe the election petitioner with a
complete cause of action are "material facts" which
must be pleaded, and the failure to place even a single
material fact amounts to disobedience of the mandate of
Section 83(1)(a) of the Act."
19. In the case of Ram Sukh Vs. Dinesh Aggarwal, (2009)
10 SCC 541 the Hon'ble Supreme Court defined the material facts
are primary or basic facts which have to be pleaded by the petitioner
21 Appln.9.23&5.24
for giving rise to cause of action, violation of which will result in
dismissal of the petition.
20. Similarly, in the case of Virender Nath Gautam Vs.
Satpal Singh and Ors., (2007) 3 SCC 617, paras 29 and 31 are
relevant and quoted below:
"29. From the relevant provisions of the Act
reproduced hereinabove, it is clear that an election
petition must contain a concise statement of 'material
facts' on which the petitioner relies. It should also
contain 'full particulars' of any corrupt practice that the
petitioner alleges including a full statement of names of
the parties alleged to have committed such corrupt
practice and the date and place of commission of such
practice. Such election petition shall be signed by the
petitioner and verified in the manner laid down in the
Code of Civil Procedure, 1908 (hereinafter referred to as
"the Code") for the verification of pleadings. It should be
accompanied by an affidavit in the prescribed form in
support of allegation of such practice and particulars
thereof.
31. The expression 'material facts' has neither been
defined in the Act nor in the Code. According to the
dictionary meaning, 'material' means 'fundamental',
'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive',
'essential', 'pivotal', indispensable', 'elementary' or
'primary'. [Burton's Legal Thesaurus, (3rd edn.); p.349].
The phrase 'material facts', therefore, may be said to be
those facts upon which a party relies for his claim or
defence. In other words, 'material facts' are facts upon
which the plaintiff's cause of action or the defendant's
defence depends. What particulars could be said to be
'material facts' would depend upon the facts of each
case and no rule of universal application can be laid
down. It is, however, absolutely essential that all basic
and primary facts which must be proved at the trial by
22 Appln.9.23&5.24
the party to establish the existence of a cause of action
or defence are material facts and must be stated in the
pleading by the party."
21. Similarly, in the case of Laxmi Kant Bajpai Vs. Hazi
Yaqoob and Ors., (2010) 4 SCC 81, the Hon'ble Supreme Court
relying upon the earlier judgment had made observations that the
material fact required to be stated are those facts which can be
considered as materials supporting the allegations made in the
petition and would constitute the cause of action which the opposite
party will have to meet.
22. Considering the law discussed in above Judgments to
the fact of instant case, it is to be noted that in the Election Petition,
at page 3, clause II, the petitioner has stated that the election is
challenged on the ground that the nomination of respondent no.1
has been improperly accepted by the returning officer and the
election is void due to non compliance of the provisions of the
Constitution of India and the R.P. Act. It is stated in the same para
that respondent no.1 does not belongs to the S.T. category.
Therefore, respondent no.1 is not qualified to contest the elections
from 10-Chopda (S.T.) Assembly Constituency. It is stated in the
petition that 10-Chopda (S.T.) Assembly Constituency is reserved for
the S.T. category for the assembly elections held in the year 2009
23 Appln.9.23&5.24
and 2014 and it is further continued for the Maharashtra Legislative
Assembly Elections of 2019 from 10-Chopda (S.T.) Assembly
Constituency.
It is stated that the returned candidate respondent no.1
belongs to Hindu Other Backward Category as seen from the oldest
record of her father and the school record of respondent no.1 herself.
However, respondent no.1 by suppressing material facts and by
obtaining the caste certificate from Sub-Divisional Officer, Jalgaon
without submitting any documents has filled nomination form from
the 10-Chopda (S.T.) Assembly Constituency.
It is stated that respondent no.1 has made false
statement in Part-III of the nomination form stating that she belongs
to Tokre Koli (S.T.). It is stated that the entire school record of
respondent no.1, her father, her sister and other relatives indicate
that respondent no.1 / returned candidate belongs to Hindu (OBC)
and, as such, respondent no.1 is not qualified to contest the assembly
elections on the seat earmarked for S.T. category.
It is also stated that in para XV of the petition that the
Information Officer of the S.C. S.T. Verification Committee to supply
the necessary documents along with proposal for verification of tribe
of respondent no.1 / returned candidate, which are annexed by the
24 Appln.9.23&5.24
petitioner to the petition at Annexure "K". The documents at page
238 of the petition is a leaving certificate of the returned candidate,
which indicates the year of admission to the school as 1976 and the
returned candidate belongs to हिंद ू इ. मा., at page 239 of Maharu
Keshav Koli indicates caste as कोळी, at page 240 of Shobha Maharu
Baviskar indicates caste as हिंद ू कोळी (इ. मा.), at page 241 of Sunanda
Maharu Koli indicates caste as हिंद ू मागासलेला, at page 242 of Manisha
Sahebrao Baviskar indicates caste as हिंद ू - टोकरे कोळी (शे. ट्रा.), at page
243 Rekhabai Sahebrao Baviskar indicates caste as caste हिंद ू टोकरे
कोळी (शे. ट्रा.).
23. All these documents as above and other documents,
which are marked with Annexure "K", prima facie, gives rise to the
triable case of that the returned candidate do not belongs to S.T.
category. The documents will have to be examined at the stage of
trial. Thus, all material facts required to decide this election are
pleaded in the Election Petition.
24. The reliance placed by the learned counsel for the
applicant / returned candidate on the case of Karim Uddin Barbhuiya
Vs. Aminul Haque Laskar and Ors., AIR 2024 SC 2193, is of no
25 Appln.9.23&5.24
assistance in the instant case, as Karim's case relates to the corrupt
practice and for the reasons of corrupt practice the results of the
elections were materially affected. As far as the present case is
concerned, it only relates to the case of the returned candidate being
not qualified to contest the election in terms of Section 5(a) of the
R.P. Act read with Article 173(c) of the Constitution of India.
25. In the case of Karim Uddin Barbhuiya Vs. Aminul Haque
Laskar and Ors, AIR 2024 SC 2193, the Hon'ble Supreme Court held,
at para 16, as under:
"16. Bearing in mind the aforestated legal position, let
us consider the averments and allegations made by the
Respondent No. 1 in the Election Petition in which the
election of the Appellant is sought to be challenged
basically on two grounds: (1) that the Appellant has
committed corrupt practice and (2) the result of the
election in so far as it concerned the Appellant, was
materially affected by the improper acceptance of his
nomination. In short, the Respondent No. 1 has invoked
Section 100(1)(b) and Section 100(1)(d)(i) of the Act,
for declaring the election of the Appellant as void."
26. Coming to the next submission of the learned counsel
for the applicant that the election petition suffers from defects in
verification of the pleadings and is not as per Order 6 Rule 15 of the
CPC. The law on the subject is discussed as under.
26 Appln.9.23&5.24
The defect in verification of election petition or affidavit
accompanying the election petition are curable defects and not fatal
as has been held in the case of H.D. Revanna Vs. G. Puttaswamy and
Ors., (1999) 2 SCC 217.
27. The Hon'ble Supreme Court in the case of Thangjam
Arunkumar Vs. Yumkham Erabot Singh and Others, 2023 DGLS (SC)
912, considering the law laid down in earlier case of G. M.
Siddeshwar Vs. Prasanna Kumar, (2013) 4 SCC 776, wherein the
three Judge Bench in Siddeshwar (supra) observed as under:
"12. ....
1. The principal question of law raised for our
consideration is whether, to maintain an election
petition, it is imperative for an election Petitioner to file
an affidavit in terms of Order 6 Rule 15(4) of the Code
of Civil Procedure, 1908 in support of the averments
made in the election petition in addition to an affidavit
(in a case where resort to corrupt practices have been
alleged against the returned candidate) as required by
the proviso to Section 83(1) of the Representation of the
People Act, 1951. In our opinion, there is no such
mandate in the Representation of the People Act, 1951
and a reading of P.A. Mohammed Riyas v. M.K.
Raghavan, (2012) 5 SCC 511, which suggests to the
contrary, does not lay down correct law to this limited
extent.
2. Another question that has arisen is that if an
affidavit filed in support of the allegations of corrupt
practices of a returned candidate is not in the statutory
Form 25 prescribed by the Conduct of Elections Rules,
1961, whether the election petition is liable to be
27 Appln.9.23&5.24
summarily dismissed. In our opinion, as long as there is
substantial compliance with the statutory form, there is
no reason to summarily dismiss an election petition on
this ground. However, an opportunity must be given to
the election Petitioner to cure the defect. Further,
merely because the affidavit may be defective, it cannot
be said that the petition filed is not an election petition
as understood by the Representation of the People Act,
1951.
22. A plain reading of Rule 15 suggests that a
verification of the plaint is necessary. In addition to the
verification, the person verifying the plaint is "also"
required to file an affidavit in support of the pleadings.
Does this mean, as suggested by the learned Counsel for
Siddeshwar that Prasanna Kumar was obliged to file two
affidavits-one in support of the allegations of corrupt
practices and the other in support of the pleadings?
23. A reading of Section 83(1)(c) of the Act makes it
clear that what is required of an election Petitioner is
only that the verification should be carried out in the
manner prescribed in Code of Civil Procedure. That
Order 6 Rule 15 requires an affidavit "also" to be filed
does not mean that the verification of a plaint is
incomplete if an affidavit is not filed. The affidavit, in
this context, is a stand-alone document.
25. It seems to us that a plain and simple reading of
Section 83(1)(c) of the Act clearly indicates that the
requirement of an additional affidavit is not to be found
therein. While the requirement of "also" filing an
affidavit in support of the pleadings filed under Code of
Civil Procedure may be mandatory in terms of Order 6
Rule 15(4) Code of Civil Procedure, the affidavit is not a
part of the verification of the pleadings-both are quite
different. While the Act does require a verification of the
pleadings, the plain language of Section 83(1)(c) of the
Act does not require an affidavit in support of the
pleadings in an election petition. We are being asked to
read a requirement that does not exist in Section 83(1)
(c) of the Act.
28 Appln.9.23&5.24
37. A perusal of the affidavit furnished by Prasanna
Kumar ex facie indicates that it was not in absolute
compliance with the format affidavit. However, we
endorse the view of the High Court that on a perusal of
the affidavit, undoubtedly there was substantial
compliance with the prescribed format. It is correct that
the verification was also defective, but the defect is
curable and cannot be held fatal to the maintainability
of the election petition.
38. Recently, in Ponnala Lakshmaiah v. Kommuri Pratap
Reddy, (2012) 7 SCC 788 the issue of a failure to file an
affidavit in accordance with the prescribed format came
up for consideration. This is what this Court had to say:
" 28. ... The format of the affidavit is at any rate not a
matter of substance. What is important and at the heart
of the requirement is whether the election Petitioner has
made averments which are testified by him on oath, no
matter in a form other than the one that is stipulated in
the Rules. The absence of an affidavit or an affidavit in a
form other than the one stipulated by the Rules does not
by itself cause any prejudice to the successful candidate
so long as the deficiency is cured by the election
Petitioner by filing a proper affidavit when directed to
do so."
We have no reason to take a different view. The
contention urged by Siddeshwar is rejected."
28. The instant Election Petition is supported by verification
at page 21, wherein it is stated on solemn affirmation that, what is
stated in para Nos. I to III and V to XIV are true facts and also
according to the true copies obtained by the Election Petitioner from
29 Appln.9.23&5.24
the office of Returning Officer, Chopda, Tq. Choda, District Jalgaon
and from the office of Tahsil, Chopda, Tq. Chopda, District Jalgaon.
It is further stated in the verification that the contents of
para Nos. IV, XV to XXIII are true facts based on true copies supplied
by the Scheduled Caste, Scheduled Tribe Certificate Verification
Committee, Nandurbar.
It is also stated in the verification that the contents of
para Nos. XXIV to XXXIII are legal and factual submission / pleadings
and para Nos. XXXIV to XLI are technical and the same are true and
correct according to my knowledge and belief. The contents of para
No. XLII are humble prayers.
The petition again is supported by an affidavit in
support of the Election Petition titled as 'Form 25', at page 22, which
also has further verification clause at page 35.
The petition is supported by a verification clause and
also by an independent affidavit at page no.22 and there is sufficient
compliance of the requirements of filing affidavit. The affidavit
mentioned as "Form 25" in the title is merely superfluous and as an
abundant precaution and in any event the verification affidavit at
page no.21 & 35 clearly supports the petition in terms of Order 6
Rule 15 of the CPC, any defect thereto is also curable defect and the
30 Appln.9.23&5.24
petition cannot be dismissed outright as far as the defect in the
affidavit is concerned.
29. Now, I deal with the issue raised by Mr. Deshmukh that
once the declaration as contemplated in Part-III of 'Form 2B' of Rule
4 read with Sections 5(a) and 33(2) of the R.P. Act is made, there is
no obligation to produce any document for the candidate to
substantiate his claim as belonging to scheduled caste or scheduled
tribe. The only obligation on the candidate contesting reserved seat
is to make a declaration about his caste / tribe, which is notified as
SC or ST in that State and nothing more is required in terms of Part-
III of From 2B above. Once the declaration is made in terms of the
Part-III of Form 2B the Returning Officer has no powers to enter into
an inquiry, whether a particular candidate contesting the reserved
seat belongs to a particular caste or tribe as to reject his nomination.
This submission of the learned counsel needs to be rejected for the
following reasons.
Section 36(2)(a) of the R.P. Act obliges the Returning
Officer to examine the nomination papers and to decide all
objections, which may be made to any nomination either on such
objection or on his own motion and to verify, if, the candidate is
either qualified or is disqualified for being chosen to fill the seat
31 Appln.9.23&5.24
under any of the provisions that may be applicable namely Articles
84, 102, 173 and 191, Part-II of the R.P. Act and Section 4 and 14 of
the Government of the Union Territories Act, 1963, or that there is
failure to comply with any of the provisions of Sections 33 or 34 or
that the signature of the candidate or the proposer in nomination
paper is not genuine. The Returning Officer has to conduct summary
inquiry to ascertain that the particular candidate is either qualified or
disqualified in terms of the provisions of the Act and the Constitution
of India.
30. The requirement of qualification of the candidate for the
State Legislature is prescribed under Article 173 (C) of the
Constitution of India i.e. a person shall not be qualified to be chosen
to fill the seat in the legislature of the State unless he possess such
other qualification as may be prescribed in that behalf by or under
any law made by parliament.
31. Section 5(a) of the R.P. Act provides for qualification of
membership of a state legislature assembly that, a person shall not
be qualified to be chosen to fill a seat in the Legislative Assembly of a
State unless; in the case of a seat reserved for the Scheduled Castes
or Schedules Tribes of that State, he is a member of any of those
32 Appln.9.23&5.24
castes or of those tribes, as the case may be, and is an elector for any
Assembly constituency in that State.
32. Section 33(2) of the R.P. Act, provides that presentation
of the nomination paper and requirement for a valid nomination in
constituency where a seat is reserved, the candidate shall not be
deemed to be qualified to be chosen to fill that seat unless his
nomination paper contains a declaration by him specifying a
particular caste or tribe of which he is a member and the area in
relation to which he is a member and the area in relation to which
that caste or tribe is a scheduled caste or, as the case may be, as
scheduled tribe of the State.
33. The requirement of Section 33(2) of the R.P. Act is that
the candidate has to make a declaration in the nomination form that
he belongs to a particular scheduled caste or scheduled tribe as
notified in the State. The Returning Officer under Section 36(2)(a)
of the R.P. Act conducts a summary inquiry verifying that the said
declaration is valid or invalid. The Returning Officer may call upon
the candidate to provide some basic document (including a caste
certificate or validity certificate, wherever available), on the basis of
which the petitioner claims to be belongs to the scheduled caste or
33 Appln.9.23&5.24
scheduled tribe. The Returning Officer may also take into
consideration, any adverse document produced by the Objectors that
the candidate does not belong to a particular scheduled caste or
scheduled tribe as notified in the State. The inquiry is summary in
nature and may either accept or reject the nomination paper. Merely
because no particular document is prescribed to ascertain the caste /
tribe of the candidate contesting election to the scheduled caste /
scheduled tribe seat, would not mean that no inquiry is
contemplated under Section 36(2) of the R.P. Act to ascertain the
scheduled caste / scheduled tribe status of the candidate.
34. I draw support from the Judgment of the Allahabad
High Court, Bench at Lucknow, in the case of Ajay Kumar Vs. Bhim
Prasad Sonkar, Election Petition No.1 of 2012, order dated
01.07.2016, at para 137, has observed as under
" 137. Since this Court is of the opinion that petitioner
has not been able to establish that he is 'Gond' and belongs
to Scheduled Caste, he was not entitled to contest the
election in view of Section 5 of the R.P. Act. As such, decision
of Returning Officer on merits rejecting the petitioner's
nomination was correct. Therefore, issue nos. 1 & 2 are
decided as under:
"Petitioner's nomination was not improperly rejected
as petitioner has failed to establish that he belongs to
Scheduled Caste""
34 Appln.9.23&5.24
35. I also takes support from the Judgment of the Hon'ble
Supreme Court in the case of Ganu Ram Vs. Rikhi Ram Kaundal and
others, MANU/SC/0158/1984, wherein the Hon'ble Supreme Court
has dealt with similar issue and has observed at para 4, as under:
"4....The first ground urged was that the nomination
paper filed by the appellant was not in order inasmuch
as it did not contain any declaration by the appellant
specifying the particular caste of which he is a member
and the area in relation to which the said caste has been
declared to be a scheduled caste in the State. On this
basis it was contended that the nomination paper of the
appellant had been improperly accepted by the
Returning Officer. ..."
36. The Hon'ble Supreme Court at para 8 in the fact
situation had observed as under:
"8. It is manifest that the legislative purpose
underlying Sub-section (2) of Section 33 of the Act is
that when a nomination paper is filed in respect of a
reserved seat in any constituency there must be a clear
specification by the candidate of the particular caste or
tribe to which he belongs and the area in relation to
which that caste or tribe is a scheduled caste or
scheduled tribe of the State. This requirement is fully
satisfied in the present case because by producing the
certificate of the Sub-Divisional Magistrate as an
annexure to his nomination paper the appellant had
clearly made it known that he was filing the nomination
as a candidate belonging to the 'Lohar' caste, which is
admittedly a scheduled caste in the entirety of the area
of the State of Himachal Pradesh. It is also significant
that no objection whatever was raised against the
35 Appln.9.23&5.24
nomination filed by the appellant at the time of
scrutiny...."
37. Although, in the case of Ganu Ram Vs. Rikhi Ram
Kaundal and others (supra), the candidate had not filed declaration
in terms of Section 33(2) of the R.P. Act and had only filed caste
certificate, the Hon'ble Supreme Court in the fact situation has held
that even if the declaration as contemplated under Section 33(2) of
the R.P. Act is not made the nomination filed can be validly accepted
on the basis of the caste certificate. Thus, the Returning Officer in a
given fact situation is entitled to look into the documents beyond the
declaration under Section 33(2) of the R.P. Act to ascertain, whether
the candidate belongs to scheduled caste or scheduled tribe category.
38. Similarly, in the case of Satrucharla Vijaya Rama Raju
Vs. Nimmaka Jaya Raju & others, AIR 2006 SC 543, the Hon'ble
Supreme Court in an appeal filed against the Judgment of the High
Court in Election Petition upheld the Judgment of the High Court,
whereby the High Court had declared that the returned candidate
did not belong to the Scheduled Tribe category after considering the
evidence placed on record.
36 Appln.9.23&5.24
39. The submission of the learned counsel for the applicant
that only the declaration under Section 33(2) of the R.P. Act has to
be seen and nothing else to be looked into at the time of verification
of nomination is not the correct position of law. The Returning
Officer is entitled to look into all these relevant documents that are
produced at the stage of nomination, while conducting summary
inquiry, whether a particular candidate belongs to scheduled caste or
scheduled tribe.
40. This court in an Election Petition is also entitled to go
into the question, whether the returned candidate, who has
contested the election to the reserved seat belongs to scheduled caste
or scheduled tribe as notified in the State and declare the election
void if the returned candidate is found not belonging to the category
under Section 100(1)(a) so also under Section 100(1)(d)(i)&(iv) of
the R.P. Act. However, in an Election Petition, this court will entertain
the inquiry, whether the returned candidate, who has contested the
election to reserved seat belongs to scheduled caste or scheduled
tribe as notified in the State only if some basic documents are
produced with the Election Petition, which may, prima facie, indicate
that the returned candidate does not belong to the scheduled caste
or scheduled tribe category.
37 Appln.9.23&5.24
41. In view of this, the contentions of the applicants fail.
The applications bearing number Application in EP No.9 of 2023
(Exhibit 11) filed by the returned candidate / respondent no.1 and
Application in EP No.5 of 2024 (Exhibit 23) filed by respondent
no.5, are rejected.
[ARUN R. PEDNEKER, J.]
marathe
