(1)
IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 5805 OF 2009
Arun s/o Laxmanrao Alne,
R/o Kinwat, Tq. Kinwat,
District Nanded. PETITIONER
VERSUS
1. Returning Officer/Sub Divisional
Officer, Kinwat for Election of
Municipal of Municipal Council,
Kinwat, held in Nov-Dec. - 2007.
2. Laxmipati s/o Bapurao Donepelliwar,
R/o Kinwat, Taluka Kinwat,
District Nanded.
3. Ashatai Udhavrao Kadam
4.
Ashok s/o Gomaji Patil
5. Suresh Dattatraya Mhaske
6. Maroti Kanba Sankalwad
Respondents No. 3 to 6 are
r/o Kinwat, Taluka Kinwat,
District Nanded. RESPONDENTS
.....
Mr. R.S. Deshmukh, advocate for the petitioner.
Mr. S.T. Shelke, advocate for respondent No. 1.
Mr. V.D. Salunke, advocate for respondent No. 2.
None for the respondents No. 3 to 6.
.....
[CORAM : V.R. KINGAONKAR, J.]
[DATE OF JUDGEMENT RESERVED : 4th March, 2010]
[DATE OF JUDGEMENT PRONOUNCED : 9th March, 2010]
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JUDGEMENT :
1. By this petition, the petitioner challenges
judgement and order rendered by learned Adhoc District
Judge-2, Nanded in Election Petition No. 4/2009 whereby
and whereunder his election from municipal ward No. 17,
Samatanagar, as member of Municipal Council, Kinwat was
declared null and void and the respondent No. 2 was
declared as the elected candidate in his stead.
2. Municipal Elections were declared in the month
of October, 2007 and pursuant thereto, election
programme for Municipal Council, Kinwat was published.
The nomination forms were required to be submitted
before 2nd of November, 2007 uptill 3 p.m. The scrutiny
of the nomination forms was scheduled on 3rd November,
2007. The voting was scheduled on 25th November, 2007.
The petitioner was declared as elected candidate for
ward No. 17 on 27th November, 2007. He had secured
largest votes. There were six (6) candidates including
the petitioner and the respondents No. 2 to 6 in the
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fray. The respondent No. 2 had secured second highest
votes.
3. The respondent No. 2 filed Election Petition
under section 21 of the Maharashtra (Municipal
Councils), (Nagar Panchayats) and (Industrial Townships
Act, 1965 (for short, “the Municipal Councils Act”). He
challenged election of the petitioner on the ground that
the nomination form was not accompanied by valid
affidavit as required under the guidelines of the
Election Commission. He further asserted that the
affidavit was invalid since required adhesive stamps
were not affixed as per provisions of the Bombay Stamp
Act, 1958. He further asserted that the nomination form
was incomplete in as much as the information as required
in one of the forms was not filled in by the petitioner.
He alleged that the petitioner was ineligible to contest
the municipal election as member of the Municipal
Council because he had incurred disqualification under
section 44 (1) (e) of the Municipal Councils Act. The
District Collector had rendered order dated 11th October,
2006 whereby the petitioner was disqualified to continue
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as Member of the Municipal Council for the remainder of
term. It was alleged that the stigmatic
disqualification had continued and, therefore, the
petitioner could not be allowed to contest the municipal
election nor was eligible to continue in the office. The
respondent No.2, therefore, sought declaration that the
election of the petitioner was null and void and the
same stood cancelled. He further sought declaration
that he may be declared as elected candidate from ward
No. 17 or alternatively sought afresh election for the
said ward.
4. The petitioner denied all the material
averments made by the respondent No. 2. He pointed out
that the order of the Collector, passed under section 44
(1) (e) of the Municipal Councils Act, was set aside by
the Hon’ble the Chief Minister in appellate jurisdiction
under section 44 (4) of the Municipal Councils Act, vide
order dated 21st May, 2008. He, therefore, submitted
that the disqualification could be held as de-clamped.
He denied that the affidavit filed alongwith the
nomination papers was invalid. The petitioner alleged
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that he was framed in a false criminal case because he
is member of scheduled caste and the political foes
could not tolerate his presence in the Municipal
Council. Consequently, he urged for the dismissal of the
Election Petition.
5. The learned Adhoc District Judge-2 held that as
on the date of filing the nomination form, the
petitioner was ineligible due to disqualification
incurred by him vide order dated 11th October, 2006
passed by the Collector under section 44 (1) (e) of the
Municipal Councils Act. The learned Adhoc District
Judge further held that nomination of the petitioner was
invalid for yet another reason that the affidavit sworn
in by him was not in keeping with the guidelines issued
by the Election Commission and there was no proper stamp
affixed to that affidavit. On these grounds, the
election of the petitioner was set aside by allowing the
Election Petition. The learned Adhoc District Judge held
that since the respondent No. 2 had secured second
highest votes, there was no necessity to order re-
election for ward No. 17 of the Municipal Council.
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Hence, the Election Petition was allowed, the election
of the petitioner was cancelled and in his place, the
respondent No. 2 was declared as elected candidate.
6. Heard learned counsel for the contesting
parties. Though the respondents No. 3 to 6 were served,
yet, none of them appeared.
7.
To clear the deck, it may be stated that the
petitioner had challenged the order rendered by the
Collector under section 44 (1) (e) whereby he was
disqualified to continue as Member for the remaining
term of the Municipal Council. The remaining term was to
come to an end after fresh elections which were to be
held on 25th November, 2007. The legal impact of the
order dated 11-10-2006 passed by the Collector was that
the petitioner’s office could be deemed as vacated by
him. It was alleged that he had illegally encroached
over certain municipal land by fixing barbed wire
fencing around compound of his constructed building. The
Collector found that though the petitioner was called
upon to demolish wall and remove the barbed wire
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fencing, yet, he had not complied with such directions
and, therefore, had incurred disqualification under
section 44 (1) (e). The petitioner was prosecuted vide
a criminal case (R.C.C. No. 52/2003) for the alleged
offence punishable under section 52 (1) of the Municipal
Councils Act. It is undisputed that the learned
Judicial Magistrate (F.C.), Kinwat acquitted him of the
said charge as per judgement dated 28th September, 2007
after due trial. There is no dispute about the fact
that the petitioner had preferred appeal under section
44 (4) of the Municipal Councils Act. The Hon’ble the
Chief Minister, by order dated 21st May, 2008 (Exh-E),
allowed his appeal.
8. Questions involved in this petition are :
(i) Could it be said that the petitioner
was ineligible and disqualified to contest the
municipal election for the reason that at the
time of filing of nomination form, the adverse
order rendered under section 44 (1) (e) of the
Municipal Councils Act was in existence ?
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(ii) Whether the nomination of the
petitioner was patently illegal due to alleged
defects noticed from the supportive affidavit
filed by him alongwith the nomination papers ?
(iii) Was it legally permissible for the
Court below to declare the respondent No. 2 as
an elected candidate when there were more than
two (2) candidates in the fray and the case was
not of recrimination or causing of votes in
favour of the petitioner due to any corrupt
practice ?
9. True, the petitioner did not file copy of stay
order before the learned Adhoc District Judge during the
course of hearing of the Election Petition and,
therefore, such copy of the order dated 8th November,
2006 cannot be looked into while deciding the present
petition. The written statement of the petitioner did
not refer to the fact that the Collector’s order dated
11th October, 2006 was stayed by the competent authority
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on 8th November, 2006. Obviously, there was no warrant
for the learned Adhoc District Judge to assume that
there was stay granted by the competent authority and,
therefore, the Collector’s order could not be considered
so as to infer disqualification of the petitioner. The
petitioner seems to have neglected in raising plea in
the context of the interim stay order issued by the
competent authority. Still, however, it cannot be
overlooked that the petitioner had categorically pleaded
that the Collector’s order dated 11th October, 2006 was
set aside by the competent authority i.e. the Hon’ble
the Chief Minister by virtue of order dated 21st May,
2008. This fact was brought to the notice of the
learned Adhoc District Judge. He had further pointed
out that he was acquitted by the Criminal Court in the
criminal case bearing R.C.C. No. 52/2003. The learned
Adhoc District Judge observed that though the
disqualification order was set aside by the Hon’ble the
Chief Minister on 21st May, 2008, yet, the stigma of
disqualification was very much present as on the date of
filing of the nomination form i.e. on 2nd November, 2007.
Thus, inspite of removal of the disqualification as per
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order dated 21st May, 2008 in appeal under section 44 (4)
of the Municipal Councils Act, the petitioner was held
disqualified for the purpose of his nomination as a
candidate for ward No. 17.
10. Mr. Salunke, learned counsel for the respondent
No. 2 contended that the petitioner was disqualified due
to the juxtaposition available as on the date of filing
of the nomination form in view of section 16 (1) (a-1)
(ii) of the Municipal Councils Act. He argued that the
stigmatic disqualification might have been de-clamped
subsequently on 21st May, 2008, yet, the nomination form
of the petitioner could not have been accepted on 2nd
November, 2007 and hence, he was ineligible to contest
the municipal election. Mr. Salunke would submit that
the very foundation of the nomination of the petitioner
was illegal and, therefore, the view taken by the
learned Adhoc District Judge cannot be faulted with. I
do not agree. The learned Adhoc District Judge ought to
have properly appreciated the legal impact of the order
rendered by the appellate authority. It is well settled
that when an appeal is allowed and the order under
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appeal is set aside, then it stands legally vanished
from the day one of such order. It does not become
valid for the period between passing of the order and
the order of the appellate authority whereby it comes to
an end. It mean to say, the order of the Collector
ought to have been held as retrospectively wiped out due
to the appellate order dated 21st May, 2008 which stood
merged in the order of the lower authority.
11. In “Baby Samuel v. Tukaram Laxman Sable and
others” 1995 Supp (4) S.C.C. 215, the Apex Court held
that once the removal order in relation to the President
of Municipal Council was set aside, the consequential
action alongwith the removal order cannot stand. The
Apex Court observed :
“Because the State Government did not pass any
orders on the stay petition filed by theappellant in his appeal preferred against the
orders of removal/disqualification, the
Collector notified and held an election to the
office of the President whereat Shri Sable was
elected as President. This election was again::: Downloaded on – 09/06/2013 15:41:31 :::
( 12 )a consequence of the removal/disqualification
of the appellant by the Collector. If so,
once the order of removal/disqualification isset aside by the Government, the appellant is
entitled to be put back in the same position
which he was in before he was removed. Inother words not only should he be restored to
the Councillorship but also to the office of
the President, Shri Sable was elected as thePresident in the vacancy caused by the
removal/disqualification of the appellant and
once the said removal/disqualification of theappellant goes, the consequential action
cannot stand; it falls to ground along with
the order of removal, Shri Sable musttherefore yield ground to the appellant.”
12. The learned Adhoc District Judge committed
patent error while holding that the petitioner was
ineligible to contest the election on account of
disqualification under section 44 (1) (e) of the
Municipal Councils Act as per order of the Collector.
It is worthwhile to notice the purport of section 16 of
the Municipal Councils Act. Admittedly, the petitioner
was not convicted for any offence at the relevant time
and no other provision except section 16 (1) (a-1) (ii)
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of the Municipal Councils Act can be considered so as to
examine whether he was disqualified for becoming
councillor. Section 16 (1) (a-1) (ii) reads as follows:
“16. Disqualifications for becoming
Councillor.- (1) No person shall be qualified
to become a Councillor whether by election, ornomination, who, –
(a-1) ig has been so disqualified by or under
any law,-
(i) *****
(ii) made by the legislature of the State
of Maharashtra; or;
(a) has been convicted by a Court in
India of any offence and sentenced to
imprisonment for not less than two years,
unless a period of five years, or such lesser
period as the State Government may allow inany particular case, has elapsed since his
release; or
(aa) has at any time after the
commencement of the Maharashtra Municipalitiesand other Provisions (Amendment) Act, 1974,
(Mah. IV of 1974), been convicted of an
offence punishable under Section 153-A, or
sub-section (2) or (3) of section 505, of the
Indian Penal Code, unless a period of five::: Downloaded on – 09/06/2013 15:41:31 :::
( 14 )years has elapsed since the date of such
conviction; or
(ab) has been convicted of an offencepunishable under the Untouchability (Offenes)
Act, 1955 (XXII of 1955) and sentenced to
imprisonment for any term or fine unless aperiod of (six years), has elapsed since his
release; or
(ac) has been convicted by a Court inIndia of any offence involving moral turpitude
unless a period of (six years), has elapsed
since the date of such conviction; or
(b) has been removed from office under
section 42 and (six years) have not elapsed
from the date of such removal, unless he has,by an order made by the State Government in
this behalf, been relieved earlier from thedisqualification arising on account of such
removal from office; or(ba) has been found guilty of misconduct
in the discharge of his duties, or being
guilty of any disgraceful conduct while
holding the office of the President or Vice-
President of the Council unless the period of
disqualification provided under Section 55 B
has lapsed.
(c) is an undischarged insolvent; or
(d) is of unsound mind and stands so
declared by a competent Court; or
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(e) has voluntarily acquired the
citizenship of a foreign state or is under any
acknowledgement of allegiance or adherence to a
foreign State; or
(f) is a Judge; or
(g) is a subordinate officer or servant
of Government or any local authority or holds
an office of profit under Government or any
local authority; or
(ga) if, having held any office under any
Government or local authority has, whether
before or after the commencement of the
Maharashtra Municipalities and other
Provisions (Amendment) Act, 1974, (Mah. IV of
1974), been dismissed for misconduct, unless a
period of five years has elapsed since his
dismissal; or
(h) is in arrears (otherwise than as a
trustee) of any sum due by him to the Council
after the presentation of bill therefor to him
under section 150; or
(ha) has not paid any sums due, whether
surcharged or charged, under the provisions of
the Bombay Local Fund Audit Act, 1930 Bom. XXV
of 1930;
(i) save as hereinafter provided, has
directly or indirectly, by himself or his
partner, any share or interest in any work
done by order of a Council or in any contract
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with or under or by or on behalf of a Council;
or
(j) save as hereinafter provided, has
directly or indirectly, by himself, or his
partner any, share or interest in any
transaction of loan of money advanced to, or
borrowed from, any officer or servant of the
Council.
(k) has more than two children;
Provided that a person having more than two
children on the date of commencement of the
Maharashtra Municipal Corporations and
Municipal Councils, Nagar Panchayats and
Industrial Townships (second Amendment) Act,
1995 (hereinafter in this clause referred to as
“the date of such commencement”) shall not be
disqualified under this clause so long as the
number of children he had on the date of such
commencement does not increase;
Provided further that a child or more than one
child born in a Single delivery within the
period of one year from the date of such
commencement shall not be taken into
consideration for the purpose of
disqualification mentioned in this clause.
Explanation : *****
(l) is a member of the State Legislature or of
Parliament;
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Provided that nothing in this Clause shall
affect the membership of a sitting Councillor
till the expiry of his current term of officeas such Councillor;
Provided further that any action, taken by such
councillor during the period from the 7thOctober 2001 till the 20th October 2001, being
the date of publication of the Maharashtra
Municipal Corporation and Muncipal Councils(Amendment) Ordinance, 2001, shall be deemed to
have been validly taken and shall not be
challenged in any court of law only on theground that during the said period he had
incurred disqualification under this clause.”
13. The comparative reading of section 16 and
section 44 of the Municipal Councils Act would make it
manifestly clear that they operate in distinct fields.
It is conspicuous that section 44 deals with
disqualification of Councillor who is already elected
and holding the office, during midst of the term of
office. If he is found to have incurred
disqualification during the period of holding the
office, then he can be regarded as disqualified to
continue as Member for the remainder of the term. In
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the present case, the petitioner could be regarded as
disqualified to hold the office as a Councillor for
further term which had remained after 11th October, 2006.
It is undisputed that the subsequent elections were
declared in the month of October, 2007 and the results
were declared on 27th November, 2007. The effect of
disqualification under section 44 could not be continued
for the next term. The expression “he shall be disabled
subject to the provisions of sub-section (3) from
continuing to be a Councillor and his office shall
become vacant” as used in section 44 (1) would mean that
the Councillor would be discontinued to remain as such.
The disqualification under section 16 does imply
ineligibility to become a Councillor either by election
or nomination. In my humble opinion, disqualification
to contest the election is one thing and the
disqualification to continue as elected Councillor for
remaining term of the office is another thing. Mr.
Salunke invited my attention to section 40 and section
41 of the Municipal Councils Act. The term of office of
the Councillor, no doubt, would be co-terminus with the
duration of the Council. However, a disqualified
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Councillor, against whom order under section 44 is
rendered, cannot continue to remain in the office and
his office immediately shall become vacant as
specifically provided vide section 44 (1). In this view
of the matter, deeming effect is given to the end of
term of the office of such disqualified Councillor.
Needless to say, the petitioner’s term could be deemed
to have come to an end on 11th October, 2006 when the
District Collector declared him disqualified from
holding the office as Councillor. The election only for
ward No. 17 could be ordered thereafter. It appears,
however, that general elections were declared lateron in
the month of October, 2007 and simultaneously, the
election of ward No. 17 was also to be held.
14. The period of disqualification under section 44
(1) (e) cannot be extended beyond the remaining term of
the office as a Councillor. In “Smt. Sayali Sanjay
Malwankar v. Chief Officer and others” 2004 (2) ALL M R
346, a Single Bench of this Court held that the
disqualification under section 44 (1) (e) of the
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Municipal Councils Act is operative for remaining term.
It was held that disqualification ordered by the
Collector for five years was illegal. This Court held
that in the absence of a statutory power, the Collector
could not have disqualified the petitioner, in that
case, for a further period of five years. The
petitioner – Smt. Sayali was disqualified for period of
five years w.e.f. the date of the Collector’s order on
account of disqualification under section 44 (1) (e).
This Court held that the disqualification of such a
Councillor could be only to the extent of the remaining
term and not in future. The Court observed that whether
petitioner Smt. Sayali can lawfully contest an election
in future, so long as the unauthorized construction
continues to exist, was not required to be decided in
the said proceedings.
15. In the fact situation of the present case, had
the petitioner continued to maintain the unauthorized
construction, probably his disqualification to contest
the election could be the question for determination.
It need not be reiterated that the petitioner was
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acquitted of the criminal charge for alleged illegal
construction/encroachment. He was also held not a
disqualified Councillor by the appellate authority.
Under these circumstances, he could not be regarded as
ineligible to contest the election for the next term
i.e. commencing after the first meeting of the Municipal
Council which could be scheduled after 27th November,
2007. For, if it is held that he was disqualified for
the next term of five (5) years too, then it would
amount to the disqualification under section 44 (1) (e)
of the Municipal Councils Act for a period beyond the
term of earlier office which could be deemed as vacated
by him after 11th October, 2006 for the remainder period
ending by November, 2007. In the absence of any such
specific power available to the Collector, the period of
such disqualification cannot be extended beyond the
earlier term of the office and, therefore, it will have
to be said that the petitioner could not be regarded as
ineligible to contest the election of the Municipal
Council at the relevant time for the next term. As
stated before, even otherwise due to de-clamping of the
disqualification ordered by the Collector, as a result
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of the appellate order, he was legally eligible to file
the nomination form to contest the election of Municipal
Council at the relevant time. This kind of
retrospective removal of disqualification ought to have
been duly appreciated by the trial Court when the
appellate order was placed on record. For all these
reasons, it will have to be said that the learned Adhoc
District Judge committed patent error while holding that
the petitioner incurred stigma and was disqualified from
contesting the election.
16. The next ground for setting aside the election
was that the affidavit filed by the petitioner alongwith
the nomination form was defective for two (2) reasons.
First, one of the paper of the affidavit in the form was
kept blank. Secondly, the affidavit did not bear
adhesive stamps as contemplated under the Bombay Stamp
Act, 1958, required for a valid notarial document. The
respondent No. 2 raised these two grounds in the
Election Petition, claiming that the nomination form
ought to have been rejected at the time of scrutiny
itself. It may be noticed that no such objection was
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raised at the time of the scrutiny of the nomination
papers. Clinching question is whether the defects shown
to have occurred in the affidavit which was accompanying
the nomination paper rendered nomination of the
petitioner as invalid.
17. Mr. Deshmukh R.S., for the petitioner relied on
the judgment in the matter of Umesh Challiyil vs. K.P.
Rajendran reported in A.I.R. 2008 S.C. 1577 wherein the
Apex Court held that the defects should be those which
go to the root of the matter. If defects can be cured
then the petition cannot be rejected on that ground. He
mainly relied on Head Note-C of this judgment, which
read as under.
“(C) Representation of the Peoples Act
(43 of 1951). Ss. 86, 83 – Election
petition – Summary dismissal of
defective petition – Defects should bethose which go to roof of matter –
Defect in complying with S. 83 –
Petition cannot be rejected under S.
86.”
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18. Mr. Deshmukh also relied on certain
observations in “Tek Chand vs. Dile Ram reported in
2001 A.I.R. SCW 540″. In this case, the Apex Court held
that mere allegation of wrong acceptance of nomination
is not a sufficient reason to set aside the election. It
should be established that such wrong acceptance has
materially affected result of election of returned
candidate. Mr. Deshmukh mainly relied on Para 14 and 28
of the said judgment, which read as under.
“14. In an election petition where an
election of a returned candidate is
impeached under section 100(1)(d)(i) ofthe RPA, it is not enough only to
establish that a nomination of acandidate was improperly accepted. In
addition, it has to be further
established that such wrong acceptance
of nomination paper has materiallyaffected the result of the election in
so far it concerned the returned
candidate. In this view, in this case,
having regard to facts and contentions,
we think it is appropriate to take upthe second point set forth above for
consideration first.
28. Thus viewed from any angle and even
assuming that nomination paper of Nikka
Ram was improperly accepted we hold
that the election of the appellant-the::: Downloaded on – 09/06/2013 15:41:31 :::
( 25 )returned candidate in so far it
concerned him had not been materiallyaffected. The point No. 2 is answered
accordingly.”
19. Mr. Deshmukh would submit that though the Adhoc
District Judge, Nanded called original papers from the
Returning Officer, Court failed to consider the
affidavit filed by the petitioner alongwith nomination
form and material disclosed by him. He submitted that
the learned Adhoc District Judge failed to consider that
the affidavit filed by the petitioner was scribed on the
non judicial stamp of Rs.100/- and, therefore, the
petitioner annexed blank form with his affidavit. He
further submitted that the learned Adhoc District Judge
failed to consider the stay granted by the competent
authority on 08-11-2006 to the order dated 11-10-2006
passed by the Collector, Nanded. Mr. Deshmukh further
submitted that it is well settled principle of law that
because of formal defects, person’s fundamental right
should not be affected.
20. On the other hand, Mr. Salunke V.D. learned
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counsel appearing on behalf of respondent No. 2, would
submit that the judgment dated 01-08-2009 passed by the
learned Adhoc District Judge-2 is according to law. He
would submit that in the Election Petition, respondent
No. 2 specifically stated that the petitioner filed his
affidavit alongwith nomination form with blank printed
form and same was not validly sworn in before the Notary
because Notary stamp which is necessary for compliance
and completion of verification was not affixed thereon.
In support of his contentions, Mr. Salunke relied on the
following Sections of Bombay Stamp Act, 1958 which are
reproduced hereunder.
“2(h) “duly stamped” as applied
to an instrument means that the
instrument bears an adhesive or
impressed stamp of not less than the
proper amount and that such stamp has
been affixed or used in accordance with
the law for the time being in force in
the State.”
“13. Instruments stamped with
impressed stamps how to be written.
Every instrument for which sheet of
paper stamped with impressed stamp is
used shall be written in such manner
that the writing may appear on the face
and, if required, on the reverse of
such sheet so that it cannot be used
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for or applied to any other instrument.
Explanation.I- Where two or more
sheets of papers stamped with impressed
stamps are used to make up the amount
of duty chargeable in respect of any
instrument, either a portion of such
instrument shall be written on each
sheet so used, or the sheet on which no
such portion is written shall be signed
by the executant or one of the
executants, with an endorsement
indicating that the additional sheet is
attached to the sheet on which the
instrument is written.
Explanation.II- Where the sheet
or sheets bearing impressed stamps is
or are insufficient to admit of the
entire instrument being written
thereon, so much plain paper may be
subjoined thereto as may be necessary
for completing the writing of such
instrument, provided a substantial part
of the instrument is written on the
sheet which bears the stamp before any
part is written on the plan paper so
subjoined; and such plain paper may or
may not be signed by the executant but
where it is not so signed it shall not
render the instrument not duly
stamped.”
“Article-42. Stamps to be used –
Adhesive Stamp paper under Section 11
read with Rule 6.
NOTARIAL ACT, that is to say, any
instrument, endorsement, note,
attestation, certificate or entry not
being a Protest (Article 49) executed
by a Notary Public in the performance
of the duties of his office, or by any
other person lawfully acting as a
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Notary Public.”
21. Mr. Salunke contended that as per Bombay Stamp
Act, 1958, affidavit should bear an adhesive or
impressed stamp of not less than the proper amount and
that such stamp has been affixed or used in accordance
with the law for the time in force in the State. He
submitted that in the present case, it is crystal clear
from the record that the affidavit filed by the
petitioner was without any stamp and therefore, same
cannot be considered according to law.
22. Mr. Salunke further contended that State
Election Commission, Maharashtra issued order dated
03-07-2002 explaining the procedure for filing
nomination forms. He mainly relied on Para 8 (1,2,3 and
4), which read as under.
“8. Now, therefore, in exercise of
the powers conferred by Article 243-K
and 243-ZA of the Constitution of India
read with sub-section (4) of section 9A
of the Maharashtra Zilla Parishads and
Panchayat Samitis Act, 1962 (Mah. V of
1962), sub-section (4) of section 10A
of the Bombay Village Panchayats Act,::: Downloaded on – 09/06/2013 15:41:31 :::
( 29 )1958 (Bom III of 1959) sub-section (4)
of section 18A of the Mumbai MunicipalCorporation Act (Bom III of 1888), sub-
section (4) of section 14 of the Bombay
Provincial Municipal Corporations Act,
1949 (Bom LIX of 1949, sub-section (4)
of section 9B of the City of Nagpur
Corporation Act, 1948 (C.P. Berar II of
1950), sub-section (4) of section 10A
of the Maharashtra Municipal Councils,
Nagar Panchayats and Industrial
Townships Act, 1965 and of all other
powers enabling it in this behalf, the
State Election Commission, Maharashtra,
hereby directs as follows:-
1) Every candidate at the time of
filing his nomination paper for any
election or bye-election for electing a
Member or Members of any Panchayat or
Municipality, shall furnish full and
complete information in regard to all
the five matters, in affidavit in the
format annexed hereto as Annexure-I to
this Order:
Provided that having regard to the
difficulties in swearing an affidavit
in a village, a contesting candidate at
the election to a Village Panchayat
under the Bombay Village Pachayats Act,
1959 shall, instead of filing an
Affidavit, file before the Returning
Officer a declaration in the format
annexed hereto as Annexure-II to this
Order.
2) The said affidavit by each
candidate shall be duly sworn before a
Magistrate of the First Class or a
Notary Public or a Commissioner of
Oaths appointed by the High Court of
the State or before an officer
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competent for swearing an affidavit
which includes Sub-Divisional (Class I)
and Tahasildar (Class I).
3) Non furnishing of the affidavit or
declaration as the case may be by any
candidate shall be considered to be
violation of this order and the
nomination of the candidate concerned
shall be liable to rejection by the
returning officer at the time of
scrutiny of nomination for each non-
furnishing of the affidavit.
4) Furnishing of any wrong or
incomplete information of suppression
of any material information by any
candidate in or from the said affidavit
or declaration on as the case may be,
may also result in the rejection of his
nomination paper where such wrong or
incomplete information or suppression
of material information is considered
by the returning officer to be a defect
of substantial character, apart from
inviting penal consequences under the
Indian Penal Code for furnishing wrong
information to a public servant or
suppression of material facts before
him.
Provided that only such information
shall be considered to be wrong or
incomplete or amounting to suppression
of material information as is capable
of easy verification by the returning
officer by reference to documentary
proof adduced before him in the summary
inquiry conducted by him at the time of
scrutiny of nominations and the
information so verified shall be taken
into account by him for further
consideration of the question whether
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the same is a defect of a substantial
character.”
23. On careful consideration of the rival
submissions and also on close reading of copy of the
affidavit (Exh-G) placed on record, it is amply clear
that the learned Adhoc District Judge committed patent
error while holding that the affidavit is incomplete
because one of the printed page of the format i.e.
Annexure-I was kept blank. It appears that the
Annexure-I of the form of affidavit was printed on the
stamp paper of Rs. 100/- and, therefore, the same
Annexure-I which was also in another form was not filled
up. It is not at all a case wherein the Annexure-I was
not filled up by the petitioner. He had given the
necessary information as provided in Annexure-I in the
affidavit. Since the information was given in printed
form below the stamp paper of Rs. 100/-, yet, another
form of Annexure-I, which was alongwith the affidavit,
was not filled up by him. That would have been only
repetition of the same information which was already
filled up in Annexure-I below the stamp paper of Rs.
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100/-. Obviously, there is no basis to infer that the
affidavit filed in form Annexure-I was incomplete and,
therefore, the nomination could be regarded as invalid.
In fact, it appears that the affidavit filed by the
petitioner was in the required formats alongwith the
relevant Annexures. The affidavit was in keeping with
the Annexures as provided for in terms of the order
dated 3rd July, 2002, issued by the State Election
Commission, Maharashtra (Exh-R-1). There appears
factual inaccuracy committed by the Adhoc District Judge
while holding that the nomination form was not complete
due to non-filling of page No. 57 and, therefore, it was
incomplete affidavit. The petitioner was not required
to repeat the exercise of filling up the Annexure-I when
he had already filled up the information on earlier page
below the non-judicial stamp of Rs. 100/-. The
inference drawn by the learned Adhoc District Judge is
rather strange and so also the argument advanced by the
learned counsel for the respondent No. 2 is rather far-
fetched.
24. Now, it remains to be seen whether the defect
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in the affidavit due to non-affixing of adhesive stamps
at the place of verification by the Notary Public could
be of substantial nature, so much so that the nomination
paper itself could be vitiated on such ground. It is
true that the provision of the section 2 (h) read with
section 11 (b) and Schedule-I Article 42 of the Bombay
Stamp Act, 1958 would show that the notarized document
ought to be affixed with adhesive stamps of Rs. 25/-.
It is true that such adhesive stamps were not affixed to
the affidavit where the Notary Public endorsed the
verification with the signature and stamp of the Notary
Public. The defect,it is argued, would render such
affidavit inadmissible and it would be simply a waste
paper.
25. The observations of learned Single Judge in
“Kashi Prasad Saksena vs. State Government of U.P.
Lucknow” (supra), with due respect, can be used only to
the extent of saying that the endorsement by the Notary
Public on affidavit falls within provision of Article 42
of the Bombay Stamp Act and requires Notarial stamp.
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Still, however, it is too much to say that it becomes
waste paper due to such technical flaw. Reliance on
observations in “M/s. Canwood Agencies Pvt. Ltd. vs.
Namdeo Pandurang Panchal and another” (supra), also is
misplaced. The instrument which is compulsorily
required to be registered, may not be used to prove
origin or extinguishment of the right to an immovable
property. The affidavit does not create any right as
such. It is argued that such affidavit, which does not
bear adhesive stamps, cannot be read in evidence. In
fact, the expression “affidavit” falls outside the
definition of the word “evidence” and, therefore, there
is no question of reading the same in evidence. The
word “evidence” as used in section 3 of the Evidence Act
does not include the expression “affidavit”. In “Sudha
Devi vs. M.P. Narayanan” (AIR 1988 S.C. 1381), the Apex
Court held that affidavits are no evidence under the
Evidence Act. They can be used as evidence only if the
Court passes an order for sufficient reasons for proving
a fact by affidavit.
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26. So also, in “Umesh Challiyil v. K.P. Rajendran”
(AIR 2008 S.C. 1577), the Apex Court held that minor
defect in the affidavit filed in support of allegation
of corrupt practice could not be fatal to the petition.
The minor defect in the affirmation, it was held, di d
not go to the root of the matter so as to render the
entire election petition not properly constituted
entailing the dismissal of the same. In fact, the minor
defect in swearing of the affidavit could not vitiate
the nomination paper itself. It is too technical
approach to say that the non-affixing of the adhesive
stamps at the place of verification by the Notary Public
was substantial defect and, therefore, nomination of the
petitioner was liable to be rejected.
27. In “Tek Chand vs. Dile Ram” 2001 A.I.R. SCW
540, the Apex Court held that mere allegation of wrong
acceptance of nomination paper would not be sufficient
to declare the election as null and void. It is held
that such wrong acceptance of the nomination paper must
be proved to have materially affected result of the
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election of returned candidate. The minor technical
defect alleged by the respondent No. 2 had nothing to do
with the result of the petitioner’s election. I mean to
say, the so called defect could not have caused any
change in the voting pattern and the petitioner was not
likely to gain more votes due to such defect in the
verification of the said affidavit. Needless to say,
the respondent No. 2 attempted to make out a mountain
out of the mole-hill. The minor defect in the affidavit
regarding non-affixing of the adhesive stamps could not
be blown out of proportion so as to nullify the election
of the petitioner. The reliance on observations in “Regu
Mahesh alias Regu Maheshwar Rao vs. Rajendra Pratap
Bhanj Dev & another” 2004 (5) ALL MR (S.C.) 332 is also
misplaced. The counsel for the respondent No. 2
submits that though opportunity was available, yet, the
petitioner exhibited casual approach and did not remove
the defect and hence, the affidavit filed alongwith the
nomination paper was illegal and could nullify the
eligibility of the petitioner to contest the election on
basis of such invalid nomination. The authority referred
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above deals with verification of the pleadings in the
Election Petition. The verification of pleadings of
Election Petition is quite different thing than proper
verification of the affidavit accompanying a nomination
paper. Moreover, verification of pleadings in a
particular form as contemplated under the provisions of
the Representation of the Peoples Act, 1950 may affect
maintainability of the Election Petition due to specific
provision which requires presentation of the Election
Petition under section 80 (Chapter-II Part-VI) of the
Representation of the Peoples Act, 1950. The technical
defect in the affidavit could not have been cured after
the election was over. Nor it did materially affect the
election results.
28. The cumulative effect of the foregoing
discussion is that the petitioner’s nomination could not
be invalidated on account of the so called minor defects
pointed out by the respondent No. 2. The learned Adhoc
District Judge committed patent error while holding that
nomination of the petitioner was null and void. The
approach of the learned Adhoc District Judge appears to
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be hyper technical and against the spirit of the
guidelines issued by the Election Commission for the
purpose of obtaining a bonafide affidavit from the
candidates for election.
29. The last question which remains to be
determined is whether the respondent No.2 could be
declared as an elected candidate. Mr. Salunke V.D.
submits that in view of specific provision as
contemplated under section 21 (10), the respondent No. 2
could be declared as duly elected candidate when the
election of the petitioner was liable to be quashed. He
contended that since the respondent No. 2 had secured
the second highest votes, he could be declared as
elected candidate in view of section 21 (10) (a).
Section 21 (10) reads as follows :
“21. Disputes in respect of election nomination
of Councillors.
(1) *****
(2) *****
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(3) *****
(4) *****
(5) *****
(6) *****
(7) *****
(8) *****
(9) *****
(10) If the petitioner 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 Judge is satisfied that –
(a) the petitioner or such other candidate
received sufficient number of valid votes to
have been elected; or
(b) but for the votes obtained by the returned
candidate by corrupt practices the petitioner
or such other candidate would have obtained a
sufficient number of valid votes to have been
elected;
the Judge may, after declaring the election of
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the returned candidate void, declare the
petitioner or such other candidate to have
been duly elected;
Provided that –
(i) for the purpose of such computation, no
vote shall be reckoned as valid if the Judge
finds that any corrupt practice was committed
by any person known or unknown in giving or
obtaining it;
(ii) after such computation, if any equality of
vote is found to exist between any candidates
and the addition of one vote would entitle any
of the candidates to be declared elected, one
additional vote shall be added to the total
number of valid votes found to have been
recorded in favour of the candidate, or
candidates, as the case may be, selected by lot
drawn in the presence of the Judge in such
manner as he may determine.”
30. It is difficult to countenance the contentions
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of Mr. Salunke V.D. in the context of interpretation of
section 21 (10). The comprehensive reading of section 21
(10) would make it manifestly clear that such
declaration that any other candidate has been duly
elected can be granted only when it is found that as a
result of recrimination/re-counting, such other
candidate had received sufficient number of valid votes
which could be enough to declare him elected, or the
elected candidate had received votes obtained by corrupt
practice which could be eliminated and, therefore, such
other candidate could be said to have received
sufficient number of valid votes to declare him as
elected one. Neither of such contingency existed in the
present case.
31. The learned Adhoc District Judge-2 did not
ascribe any tangible reason as to why the respondent No.
2 was liable to be declared as an elected candidate. He
simply noticed that the respondent No. 2 had secured
second highest votes. This is the only reason as to why
the respondent No. 2 was declared as elected candidate
as a fall-out of the declaration that election of the
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petitioner was null and void. This approach of the
learned Adhoc District Judge-2 is improper and against
the settled principles of law. The petitioner and the
respondent No. 2 were not the only candidates in the
fray. The factual position of votes secured by the
candidates was as follows :
Sr. Name of the candidate
ig Votes secured
No.
--- --------------------------- -------------
1 Alne Arun Laxmanrao (Respdt.-2) 415
2 Kadam Ashatai Udhavrao 48
3 Donpeliwar Laxmipati Bapurao (Petnr.) 354
4 Patil Ashok Gomaji 10
5 Maske Suresh Dattatraya 02
6 Sunkalwad Maroti Kanba 10
32. A Division Bench of this Court in “Anandrao
Tohluji Bagade v. Namdeorao Lalwanji Sontakkey and
others” (1978 Mh.L.J. 371), had an occasion to consider
scope of section 21 (10) of the Maharashtra
Municipalities Act, 1965. It is observed that where
there are more than two (2) candidates, the votes
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secured by the disqualified candidates cannot be treated
as thrown away and question of notice to voters may
assume significance. For, the voters may not, if aware
of disqualification, have voted for the returned
candidate. In “Kadam Rupsing Bhivji v. Returning
Officer Municipal Council, Ahmednagar and others” 1998
(3) Mh.L.J. 293, a Single Bench of this Court held that
where there were large number of candidates, it was
immaterial to consider as to which defeated candidate
had pulled what number of votes. The learned Single
Judge held that the order declaring the respondent No. 2
as elected, was not legally sustainable because it was
difficult to anticipate as to who could have secured
more votes, had the votes received by the elected
candidate been distributed amongst them due to the
further choices available to the voters. Mr. Salunke
v.D. would submit that the view taken by the learned
Single Judge in above referred case requires re-
consideration and is not in keeping with purport of sub-
section (10) of section 21 of the Municipal Councils
Act. I do not agree. The trial Court is not supposed
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to speculate the pattern of votes in respect of the
votes which were gained by the elected candidate if by
deductive method, the only other candidate in the fray
cannot be said to have received sufficiently large votes
to declare him as elected one. For example, if “A” is
the elected candidate whose election is set aside and
only “B” is the another candidate in the fray and that
after all the invalid votes received by “A” if are
counted and deducted from the number of votes received
by him, it is found that “B” had secured highest votes,
then “B” may be declared as elected candidate as a
result of such process. The provision of section 21
(10) is not intended to fill up the Councillor’s post by
declaring unsuccessful candidate as elected one, in the
ordinary course, though he did not receive required
number of votes. In a democratic set-up, one who could
not gain sufficient confidence of the voters cannot be
declared as an elected candidate. Hence, the learned
Adhoc District Judge-2 committed patent error while
declaring the respondent No. 2 as the elected candidate.
33. Taking stock of the foregoing reasons, it is
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explicit that the petitioner could not be disqualified
as a candidate for the Municipal Election. Nor his
nomination suffered from any substantial defect due to
the non-affixing of proper adhesive stamps at the place
of verification by the Notary Public or keeping the same
Annexure-I blank though one of said Annexure-I was
filled up by him. It follows that the election of the
petitioner could not be set aside. Nor the respondent
No. 2 could be declared as an elected candidate.
34. In the result, the petition is allowed. The
impugned judgement and order is set aside. Rule made
absolute accordingly. No costs.
[ V.R. KINGAONKAR ]
JUDGE
NPJ/wp5805.09
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