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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ELECTION PETITION NO.1 OF 2004
Uttamrao Shivdas Jankar ..Petitioner.
Vs.
Ranjitsinh Vijaysinh Mohite-Patil ..Respondent.
Mr. Pramod N. Patil for the Petitioner.
Mr. C. J. Sawant, Senior Advocate with Mr. V. P. Sawant for the
Respondent.
CORAM
:
S.J. VAZIFDAR, J.
DATE OF RESERVING
THE JUDGMENT
: th
26 AUGUST, 2008.
DATE OF PRONOUNCING
THE JUDGMENT
:
16th SEPTEMBER, 2008
ORAL JUDGMENT :
The Petitioner seeks a declaration that his nomination
for the election to the Local Authorities Constituency, Solapur of
the Maharashtra Legislative Council, Biennial Election, 2003 was
improperly rejected by the Returning Officer and for a declaration
that the election of the Respondent as Member of the Maharashtra
Legislative Council from the Local Authorities Constituency,
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Solapur, of the Maharashtra Legislative Council, Biennial Election,
2003 is void, and for an order setting aside the said election.
2. By a notification dated 7.11.2003 the Returning Officer
declared the election programme for the said election. The
nomination papers were to be delivered by the candidate to the
Collector and the Returning Officer or to the Deputy Collector and
Assistant Returning Officer at the Collector’s office between 11.00
a.m. and 3.00 p.m. on any day not later than 14.11.2003. The
nomination papers were to be taken up for scrutiny at the
Collector’s office on 15.11.2003 at 11.00 a.m. Notice of withdrawal
of candidatures were to be delivered before 3.00 p.m. on
17.11.2003. The poll, if any, was to be taken on 1.12.2003
between 8.00 a.m. and 4.00 p.m.
The Petitioner’
s Case
3. On 14.11.2003 the Petitioner presented his nomination
paper in the prescribed form to the Returning Officer within the
stipulated time for the purpose of contesting the said election. The
Petitioner was an independent candidate – he was not sponsored
or set up by any political party.
The Petitioner presented his nomination paper signed by
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himself and by ten proposers who were electors of the said
constituency for the said election. There is no dispute regarding
the authenticity of the form except that the signatures of two of the
said ten proposers, one Sharif Mohammad Badshah Sutar and
Sau. Jaymala Purnanand Mhetre thereon were forged. According
to the Petitioner, the said ten proposers had signed the nomination
papers in his presence and in the presence of each other and in
the presence of other persons including one Ratan Govind Pandit.
The said Ratan Govind Pandit is the brother of Sau. Jaymala
Purnanand Mhetre. There is no dispute that the Petitioner had
deposited alongwith the nomination paper, the requisite amount.
Nor is there any dispute that the Petitioner was qualified to contest
and to stand for the said election and that the said ten proposers
including the two alleged proposers were members of the
Mangalwedha Municipal Council and as such, were and are the
electors of the said constituency for the said election. Apart from
the Petitioner and the said Respondent two other persons viz. one
Subhash Rajaram Patil and one Dilip Dnyandeo Chougule had
also presented the nomination papers for the said election. The
Respondent submitted his nomination as a candidate of the
Nationalist Congress Party.
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4. At the time of scrutiny of the nominations on 15.11.2003
the Petitioner was present with his election agent one Datta
Waghmare. The Respondent was present with his election agent
one Dilip Sopal, who at that time was the Minister of State for Law
and Judiciary, State of Maharashtra. The said Subhash Rajaram
Patil and Dilip Chougule were also present. A large number of the
Respondent’s supporters were also present at the time of scrutiny.
The said two alleged proposers of the Plaintiff Sou. Jaymala
Purnanand Mhetre and Sharif Mohammad Badshah Sutar were in
the Respondents camp and were accompanied by the
Respondent.
5. Dilip Chougule objected in writing to the nomination of
the Petitioner and the said Subhash Rajaram Patil. The objection
to the Petitioner’s nomination was that the said Sau. Jaymala
Mhetre and Sharif Sutar had not signed the Petitioner’s nomination
and their signatures therein were not genuine. He therefore
sought the cancellation and rejection of the Petitioner’s
nomination.
6. After the said objection was filed, the said two proposers
viz. Sau. Jaymala Purnanand Mhetre and Sharif Mohammad
Badshah Sutar were produced by the Respondent and his election
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agent before the Returning Officer. The said proposers submitted
their written complaints both dated 15.11.2003 to the Returning
Officer. Sau. Jaymala Purnanand Mhetre stated that she had not
affixed her signature as a proposer on any nomination papers filed
in the said election and that she had learnt that her name had
been written and her signature had been forged as a proposer on
the Petitioner’s nomination paper. Alongwith the said complaint,
she enclosed an affidavit inter-alia also stating that the signature
on the Petitioner’s nomination papers was not hers.
The complaint filed by the said Sharif Mohammad Sutar
was similar to the one filed by Sau. Jaymala Purnanand Mhetre.
The said Sharif Mohammad Sutar had also filed an affidavit similar
to the one filed by Sau. Jaymala Purnanand Mhetre.
7. The Returning Officer according to the Petitioner
wrongly entertained the evidence in the form of complaints and
affidavits. The Petitioner was accordingly required to file his own
affidavit and the affidavit of five of his other proposers and the
affidavit of said Ratan Govind Pandit, who is the brother of the said
Sau. Jaymala Purnanand Mhetre.
In his affidavit, the said Petitioner stated that he had
perused the affidavits and the objections/complaints filed by the
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said two proposers. He stated that the same were false. The
Petitioner further stated that the said two proposers had in his
presence affixed the signatures on his nomination form and that he
had himself obtained his signatures by requesting them to do so.
He stated that he knew both of them and that they had affixed their
signatures in his presence. According to the Petitioner, the
Respondent was the son of the then Minister for Public Works
Department and with an intention to have the Petitioner’s
nomination paper declared invalid, he had abducted the said two
proposers and by creating terror, had compelled them to make the
said false complaints and affidavits.
The five proposers of the Petitioner also filed a joint
affidavit dated 15.11.2003 in which they stated that they had
affixed signatures voluntarily at the same time and in the presence
of each other as well as in the presence of the said two proposers
Sau. Jaymala Purnanand Mhetre and Sharif Mohammad Sutar.
They further stated that on 14.11.2003 the Respondent with his
supporters had arrived at their village at about 9.00 and 9.30 p.m.,
created terror in their minds and threatened them for having
signed the Petitioner’s nomination and demanded their giving in
writing that they had not affixed their signatures to the Petitioner’s
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nomination form. They stated that the said persons had terrorized
and intimidated the said two proposers, abducted them and
brought them to the venue. They stated that they brought them in
the captivity of the associates of the Respondent who did not even
allowed them to talk to the said two proposers and in fact
threatened them. They stated that the complaints and affidavits
were false and had been made under pressure.
8.
The said Ratan Govind Pandit, who is the brother of
Sau. Jaymala Purnanand Mhetre filed an affidavit also dated
15.11.2003 in which he stated that his sister had in his presence
as well as in the presence of other proposers affixed her signature
as a proposer no.8 to the nomination paper of the Petitioner and
that she had done so voluntarily. He also stated that the
Petitioner’s associates had arrived between 9.00 and 9.30 at night.
He reiterated what is stated in the affidavit of the five proposers
regarding the Respondent’s associates terrorizing the Petitioner’s
proposers and abducting the said two persons.
9. On 15.11.2003 the Petitioner made a representation in
writing to the Returning Officer stating that the affidavits filed by
the said two proposers were notarized in the Office of the
Returning Officer by one Jakson; that the affidavits were prepared
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just before the time of scrutiny and that there were no signatures
of the notary in his register. He stated that the notary had himself
submitted the affidavit at about 10.45 a.m. in the Office of the
Collector. However, he stated that the notary did not even have
the copy of the said affidavit. The Petitioner therefore stated that it
would be just that both the said persons be called and made to sit
in the Office of the Returning Officer and that a copy of their
affidavits as well as the said notary’s record be called for. The
application was also made on 15.11.2003.
10. The Returning Officer adjourned the scrutiny of the
nominations till 3.45 p.m. on the said day. The Returning Officer
also called for the records from the Office of the Mangalwedha
Municipal Council for the purpose of verification of the signatures
of the said two proposers from the records of the Mangalwedha
Municipal Council.
The scrutiny resumed at about 3.45 p.m. on 15.11.2003.
11. In paragraph 16 of the petition, it is stated :-
“16. Petitioner states that the Returning
Officer adjourned the scrutiny of Nominations
till 3.45 p.m. and in the meanwhile called for
records from the office of the Mangalwedha
Municipal Council for the purpose of
verification of signatures of the said
proposers from the records of the said::: Downloaded on – 09/06/2013 13:51:51 :::
9Mangalwedha Municipal Council. The
scrutiny resumed at around 3.45 p.m. on15/11/2003. The Returning Officer thereafter
verified the signatures of the said twoproposers of the Petitioner on the Petitioner’s
nomination paper by comparing the same
with their signatures on the proceeding
books and other records of the MangalwedhaMunicipal Council. The Petitioner and his
Advocate requested the Returning Officer to
go through the Affidavit submitted by
Petitioner, Joint Affidavit of the said fiveproposers of the Petitioner, the affidavit of
said Ratan Govind Pandit and also theRepresentation of the Petitioner.
Petitioner and his Advocate contended that
Thethe joint Affidavit of the said five proposers of
the Petitioner and affidavit of the said Ratan
Govind Pandit clearly falsify the stand taken
by the said two proposers and that the
objections to the nomination of the petitioner
are not tenable. Thereafter at around 5.15p.m. the Returning Officer orally informed the
Petitioner and others that the nominations of
the Petitioner and other candidate Mr.
Subhash Patil have been rejected. Thus
only two candidates i.e. the Respondentherein and said Shri Dilip Dnyandeo
Chougule remained in the fray for the said
Election.”
12. Thereafter, the Returning Officer passed a written order
on the same day rejecting the nomination of the Petitioner for the
said election. I will refer to the order in detail at the appropriate
stage.
On 17.11.2003, the said Dilip Dnyandeo Chougule
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withdrew his nomination. Thus, the Respondent got elected
uncontested. The Returning Officer declared the Respondent as
elected uncontested from the said constituency under Section 53
(2) of the Representation of the People Act, 1951.
13. On 18.11.2003 the Petitioner filed Writ Petition No.7955
of 2003 in this Court challenging the order of the Returning Officer.
By an order dated 20.1.2003 the Petitioner was allowed to
withdraw the Writ Petition with liberty to adopt the appropriate
remedy.
14. Considering the manner in which the matter has
proceeded and the issues settled, it is not necessary to refer to the
detailed narration in the above Election Petition regarding the
opinions of the handwriting experts, obtained by the Petitioner and
the documents in connection therewith.
15. The Petitioner filed the present petition on 30.12.2003.
The Respondent filed Application No.1 of 2004 in the above
Election Petition, seeking a summarily dismissal of the petition. It
was contended that the Petitioner had alleged corrupt practices
within the meaning of that expression in the said Act and in
particular Section 100 thereof but had failed to comply with the
requirements of the said Act. Secondly, it was contended that
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there was a non-joinder of necessary parties.
The application was dismissed by an order and
judgment dated 25.11.2004. I noted the stand taken on behalf of
the Petitioner to the effect that the said affidavits filed by and on
behalf of the Petitioners before the Returning Officer were referred
to only to complete the narration of facts; that the contents thereof
had not been adopted in the Election Petition for the purpose of
contending that the Respondents were guilty of any corrupt
practices and that nowhere in the Election Petition had the merits
and contents of the said affidavits and the said Writ Petition been
adopted or incorporated so as to form the basis of or the cause of
action on which the reliefs in the Election Petition had been
claimed. I also noted the contents of paragraph 28 of the Election
Petition which were relied upon at that hearing in support of the
contention that corrupt practices had not been alleged in the
petition. I further noted that it was contended on behalf of the
Petitioner that he had challenged the decision of the Returning
Officer rejecting his nomination on the basis of the manner in
which the decision had been taken to wit, the Petitioner had
challenged the decision making process adopted by the Returning
Officer. I held that the challenge to the decision making process
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adopted by the Respondent was different from the ground of
corrupt practices. I rejected the contention on behalf of the
Respondent that if corrupt practices have been alleged in the
petition and there is non-compliance with the provisions of Section
83 of the Act, in that regard the petition is not maintainable even if
it is also founded on other grounds.
It would be convenient to set out paragraph 20 of that
order which reads thus :-
“20. Before parting with this order it is
necessary to refer to the fact that Mr. Aney
reiterated that the Petitioner, for the purpose
of this petition, does not allege any corrupt
practice by or on behalf of the Respondent.
Thus at the trial, the Petitioner shall not seekto raise or frame any issue in this regards. It
will not be necessary for the Respondent in
his written statement to deal with any corrupt
practice including those alleged in the Writ
Petition or in Exhibits-H, I and J to theElection Petition. This logically follows from
paragraph no.28 of the election petition and
Mr. Aney’s statement that it is the decision
making process/the manner in which the
Returning Officer has come to his decisionthat is under challenge and the sole basis on
which the election petition is based. It is
further clarified that all contentions with
respect to the grounds on which the Election
Petition is founded are kept open including
the grounds of non-joinder of necessary
parties as well as the ground that by merely
by even successfully challenging the decision
making process adopted by the Returning::: Downloaded on – 09/06/2013 13:51:51 :::
13Officer the election is not liable to be set
aside.”
By an order dated 14.2.2005, the Supreme Court
dismissed the SLP filed against the said order.
WRITTEN STATEMENT :-
16. The Respondent has stated at the outset, that the
written
statement is filed to deal with the scope of the petition as limited by
the Petitioner and as recorded by the said order dated 25.11.2004
passed in Application No.1 of 2004. Accordingly, the written
statement deals essentially with the Petitioner’s contentions
regarding the decision making process. The Respondent has
traversed the various averments and submissions in the Election
Petition in this regard. In short, the Respondent has contended
that the decision making process adopted by the Returning Officer
was in accordance with the provisions of the said Act.
I will refer to the submissions in the written statement in
detail while dealing with the issues.
17. On 25.11.2005, the following issues were framed :-
1. Whether the Petitioner proves that his nomination for
election to the Local Authorities Constituency, Solapur
of the Maharashtra Legislative Council Biennial
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elections 2003 was improperly rejected by the
Returning Officer ?
2. Whether the Returning Officer committed breach of
the provisions of Sub-section (1) of Section 36 of the
Representation of the People Act, 1951 by entertaining
Petitioner’s two proposers namely; Sau. Jaymala
Purnanand Mhetre and Sharif Mohammad Badshah
Sutar personally at the time and place of scrutiny of the
nomination and by further accepting and relying on their
Affidavits and written complaints, as alleged by the
petitioner ?
3. Whether the enquiry conducted by the Returning Officer
resulting into the rejection of the Petitioner’s nomination
for the election in question was not in accordance with
the provisions of Sub-section (2) of Section 36 of the
Representation of the People Act, 1951, as alleged by
the petitioner ?
4. Whether the Petitioner proves that result of the election
in question, in so far as it concerns the returned
candidate i.e. Respondent, herein, has been materially
affected by non-compliance with the provisions of Sub-
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sections (1) and (2) of Section 36 of the Representation
of the People Act, 1951 ?
5. Whether the election of the Respondent as member of
the Maharashtra Legislative Council from the Local
Authorities Constituency, Solapur and the Maharashtra
Legislative Council Biennial Election, 2003 is void and
liable to be set aside on the grounds provided under
clause (c) of sub-section (1) of Section 100 or both of
the Representation of the People Act, 1951 ?
6. What order is the Petitioner entitled to, if any ?
18. The Petitioner filed his affidavit in lieu of examination-in-
chief dated 4.10.2006.
On 6.10.2006 the Petitioner examined himself. The said
affidavit in lieu of examination-in-chief was tendered with the
consent of the parties. Some of the documents including those
produced by production witness were taken on record and marked
Exhibits “A” to “N”.
19(A). An objection was raised to the evidence in paragraph 3
commencing from the third sentence therein, to the end of the
paragraph. The arguments on the objection were heard. The
ruling however had not been given at the request of Mr.Patil, the
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learned counsel appearing on behalf of the Petitioner, who
requested an opportunity to supplement his submissions. The
matter was accordingly adjourned from time to time.
(B). In the meanwhile with the consent of the counsel, while
the Petitioner was still being examined, certain witnesses were
allowed to appear only as production witnesses. The documents
produced by them were ordered to be kept in the custody of the
(C ).
Court and their attendance was dispensed with until further orders.
On 26.11.2007 the hearing on the objection stood
concluded. I upheld the objection subject to certain clarifications,
by an order dated 26.11.2006.
(i). The objection was based on my order and judgment
dated 25.11.2004 dismissing the Respondent’s Application No.1 of
2004. Mr.Sawant, the learned Senior Counsel appearing on
behalf of the Respondent submitted that in view of the order dated
24.11.2004, the question as to whether the Petitioner’s nomination
form was in fact signed by all the signatories thereto is not
relevant. He contended that the Petitioner had expressly
restricted the challenge to the decision making process adopted by
the Returning Officer.
(D). One of the contentions raised on behalf of the
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Petitioners was that the concession recorded in the order dated
24.11.2004 was wrongly made and that the same was not binding
on the Petitioner. I observed that even if that was so, it would be
necessary in the first instance for the Petitioner to have the same
withdrawn/revoked and that if such an application is granted,
fairness demands that the Respondent be given an opportunity to
deal with the same.
20(A).
The matter was thereafter adjourned to enable the
Petitioner to either challenge the ruling or to make an application
for revoking the concession.
(B) In January, 2008 the Petitioner filed an Application being
Application No.2 of 2008 in the above petition for an order
declaring the concession given by the counsel to the effect that the
Election Petition is limited only to the challenge to the decision
making process of the Returning Officer, is wrong and not binding
on the Applicant and that the Election Petition be proceeded with
on the grounds, facts and material particulars raised and/or stated
in the Election Petition. It was also prayed that the objection
raised on behalf of the Respondent to the Petitioner’s affidavit in
lieu of examination-in-chief be overruled and the order dated
6.11.2007 be suitably modified and/or set aside.
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(C ). By an order dated 24.4.2008 I recorded the Petitioner’s
application for leave to withdraw the application. It was stated that
the Petitioner reserved his right to raise the contention in this
application in an Appeal that may be filed in the Supreme. I
observed that I did not and could not express any view on the
reservation. By the said order, I allowed the application to be
withdrawn.
21.
(A). 24.6.2008
The matter thereafter proceeded to trial on 24.6.2008.
On the examination of the Petitioner
continued. Mr. Sawant objected to the third sentence of paragraph
4 and the last sentence of paragraphs 6 and 7 of the affidavit in
lieu of examination-in-chief, which read thus :-
“4. ………………………………………………………….
I say that the nomination paper was complete
in all respects and the same was validly filedand I was validly nominated for the said
election.”
This sentence was preceded by the Petitioner, deposing
that he had personally submitted the nomination paper on
14.11.2003 to the Returning Officer at his office and had deposited
the requisite amount.
“6. ………………………………………………………..
At that time I saw Sou. Jaymala Purnanand
Mhetre and Sharif Mohammad Badshah::: Downloaded on – 09/06/2013 13:51:51 :::
19Sutar in the camp of Respondent and were
accompanied by Respondent.”
This sentence was preceded by the Petitioner, narrating
the facts regarding his presence with his election agent and the
presence of the Respondent with his election agent and the two
other candidates at the Office of the Returning Officer on
15.11.2003 as well as the statement that a large number of the
Respondent’s supporters were also present at the venue of
scrutiny.
“7……………………………………………………………
I say that the objection was false and without
any foundation and without any material on
record and the same should not have been
considered by the Returning Officer.”
This sentence was preceded by the Petitioner’s
deposition regarding the objection taken by the said Dilip
Chougule to his nomination.
Mr. Sawant’s objection was based on my ruling dated
26.11.2007. Mr. Patil submitted that the statements were not with
a view to establish the fact that the said two persons had executed
the nomination form and that the statements objected to were only
for the purpose of deciding as to whether the decision making
process was valid.
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(B). I ruled that the apprehension expressed by Mr. Sawant
that the evidence, if allowed, would permit the Petitioner to prove a
corrupt practice, was unfounded. I further ruled that the same
facts may constitute evidence on two grounds viz. evidence to
establish the corrupt practice as well as evidence to support the
case that the decision making process was wrong and that so
long as it was clarified that it was only for the latter that the
evidence was tendered, there could be no objection to the same. I
therefore overruled the objection subject to the clarifications
mentioned in the ruling.
(C ). Both the learned counsel thereafter stated, as recorded
in my order dated 24.6.2008, that the rest of the evidence in lieu of
examination-in-chief would also be subject to the same objections
and that the objections will be dealt with in a similar manner,
including the clarification.
22. Thereafter the cross-examination of the witness
commenced on 2.7.2008 and was completed on that day itself.
There was no re-examination.
23. Mr. Patil submitted that where there is an improper
rejection of the nomination, the result of the election is presumed
to have been materially affected and therefore must be set aside
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irrespective of whether the returned/successful candidate was
responsible for the same or not.
24. Section 100(1) is clear. Where, subject to the provisions
of sub-section (2) of Section 100, the Court is of the opinion that
any nomination has been improperly rejected, the High Court shall
declare the election of the returned candidate to be void. The
provisions of sub-section (2) of Section 100 are not applicable in
the present case. This view finds support from the judgments of
the Supreme Court in Somnath Rath v. Bikram K. Arukh & Ors.,
(1999) 9 Supreme Court Cases, 538. The Supreme Court held as
under :-
“14. The High Court having found and, in
our opinion, rightly that the ground on which
the Returning Officer had rejected the nomi-
nation paper of Respondent 7, viz., that he
was a dealer under the public distribution sys-
tem did not disqualify him from contesting theelection, ought not to have proceeded any fur-
ther because it was essentially a case where
the rejection of the nomination paper by the
Returning Officer, insofar as Respondent 7
Shri Panchanan Das is concerned, was im-
proper because Respondent 7 was not dis-
qualified in terms of Section 9-A of the Act.
The improper rejection of a nomination paper
by itself and without anything more is a
ground under Section 100(1)(c) of the Act to
declare the election void. No enquiry as to
“material effect” on account of the rejection of
the nomination paper is required to be made
under Section 100(1)(c) of the Act. The en-
quiry whether the result of an election has
been materially affected insofar as the re-
turned candidate is concerned is required in
the cases covered by Section 100(1)(d) of the
Act.”
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25. In Krishna Mohini v. Mohinder Nath Sofat, (2000)
Supreme Court Cases, 145, the Supreme Court held that under
Section 100(1)(c) of the said Act the improper rejection of any
nomination is by itself enough to avoid the election without
requiring further proof of the result of the election having been
materially affected.
In Santosh Yadav v. Narender Singh, (2002) 1 Supreme
26.
Court Cases, 160, it was held :-
“7. Parliament has drawn a clear distinction
between an improper rejection of any nomi-
nation and the improper acceptance of any
nomination. In the former case, to avoid an
election, it is not necessary to further prove
that the result of the election has been mate-
rially affected. The underlying reasoning forthis was well set out by a Constitution Bench
of this Court in Surendra Nath Khosla v. S.
Dalip Singh. There is a presumption in the
case of improper rejection of a nomination
paper that it has materially affected the result
of the election. The fact that one of several
candidates for an election was kept out of thearena is by itself a very material considera-
tion. The officer rejecting the nomination pa-
per of a candidate may have kept out the
most desirable candidate, the most desirable
from the point of view of electors and themost formidable candidate from the point of
view of the other candidates, from seeking
election and therefore Parliament felt that an
improper rejection of any nomination paper is
conclusive proof of the election being void
and therefore dispensed with the need of evi-
dence being tendered in proof of the result of
the election having been materially affected.
On the other hand, in the case of an improper
acceptance of a nomination paper, proof is
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23that the coming into the arena of an additional
candidate has had the effect on the electionin such a manner that the best choice of the
electorate was excluded.”
27. Mr. Sawant was unable to dispute the correctness of this
proposition. Thus, if I were to come to a conclusion that the
decision making process was illegal and the Petitioner’s
nomination was wrongly rejected, the result of the election is liable
to be set aside.
28.
Mr.Patil placed strong reliance upon the observations of
the Supreme Court in Rakesh Kumar v. Sunil Kumar (1999) 2
Supreme Court Cases, 489 (paragraphs 18 to 21) to contend that if
the procedure under the Act or as prescribed in the Handbook for
Returning Officers is not followed, the rejection of the Petitioner’s
nomination must be held to be wrong.
The facts in the present case are entirely different. It
was not contended before me that an adequate opportunity was
not given to the Petitioner to establish his case. Mr. Patil however
submitted that the judgment supports his submission that even if a
wrong procedure is adopted leading to an improper rejection of the
nomination of a candidate, the election is liable to be set aside.
29. I will proceed on the basis that a wrong procedure being
adopted, would lead to the elections being set aside.
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Re. Issue No.3: Whether the enquiry conducted by the
Returning Officer resulting into the
rejection of the Petitioner’s nomination
for the election in question was not in
accordance with the provisions of
Sub-section (2) of Section 36 of the
Representation of the People Act,
1951, as alleged by the petitioner ?
30. Section 36 of the Representation of People Act, 1951
reads as under :-
“36. Scrutiny of nominations.– (1) On the
date fixed for the scrutiny of nominations un-
der Section 30, the candidates, their election
agents, one proposer of each candidate, and
one other person duly authorised in writing byeach candidate, but no other person, may at-
tend at such time and place as the returning
officer may appoint; and the returning officer
shall give them all reasonable facilities for ex-
amining the nomination papers of all candi-
dates which have been delivered within thetime and in the manner laid down in Section
33.(2) The returning officer shall then ex-
amine the nomination papers and shall de-
cide all objections which may be made to any
nomination and may, either on such objection
or on his own motion, after such summary in-
quiry, if any, as he thinks necessary, reject
any nomination on any of the following
grounds:–
(a) that on the date fixed for the scruti-
ny of nominations the candidate either is not
qualified or is disqualified for being chosen to
fill the seat under any of the following provi-
sions that may be applicable, namely:–
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25
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 com-
ply 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.
(3) Nothing contained in clause ( b ) or
clause ( c ) of sub-section (2) shall be
deemed to authorise the rejection of the nom-
ination of any candidate on the ground of any
irregularity in respect of a nomination paper,
if the candidate has been duly nominated by
means of another nomination paper in re-
spect of which no irregularity has been com-
mitted.
(4) The returning officer shall not reject
any nomination paper on the ground of any
defect which is not of a substantial character.
(5) The returning officer shall hold the
scrutiny on the date appointed in this behalf
under clause ( b ) of Section 30 and shall not
allow any adjournment of the proceedings ex-
cept when such proceedings are interrupted
or obstructed by riot or open violence or by
causes beyond his control:
Provided that in case an objection is
raised by the returning officer or is made by
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26
any other person the candidate concerned
may be allowed time to rebut it not later than
the next day but one following the date fixed
for scrutiny, and the returning officer shall
record his decision on the date to which the
proceedings have been adjourned.
(6) The returning officer shall endorse
on each nomination paper his decision ac-
cepting or rejecting the same and, if the nom-
ination paper is rejected, shall record in writ-
ing a brief statement of his reasons for such
rejection.
(7) For the purposes of this section, a
certified copy of an entry in the electoral roll
for the time being in force of a constituency
shall be conclusive evidence of the fact that
the person referred to in that entry is an elec-
tor for that constituency, unless it is proved
that he is subject to a disqualification men-
tioned in Section 16 of the Representation of
the People Act, 1950 (43 of 1950).
(8) Immediately after all the nomination
papers have been scrutinized and decisions
accepting or rejecting the same have been
recorded, the returning officer shall prepare a
list of validly nominated candidates, that is to
say, candidates whose nominations have
been found valid, and affix it to his notice
board.”
31. Mr.Patil submitted that sub-section (2) of Section 36
expressly requires only a “summary inquiry”. He submitted that
the decision of the Returning Officer is liable to be set aside on the
ground that despite Section 36(2) requiring only a summary
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27
inquiry, he wrongly permitted the said two proposers to file
affidavits. He further wrongly referred to the affidavits while
coming to his decision. Mr.Patil reiterated the contentions raised
in ground `C’ of the petition submitting that the Returning Officer
embarked upon an inquiry which was beyond the scope of Section
36(2) by entertaining evidence in the nature of written complaints
and the affidavits of the said two proposers. The action of the
Returning Officer rejecting the nomination paper of the Petitioner
by resorting to “said detailed inquiry” is improper. The rejection of
the Petitioner’s nomination was therefore improper.
32. I am unable to accept Mr. Patil’s submission. Section 36
(2) requires a summary inquiry as the Returning Officer thinks
necessary. The provision confers ample power on the Returning
Officer as regards the nature and extent of the inquiry. Indeed, I
can understand a grievance that the extent of the material referred
to in arriving at the decision under Section 36(6) was inadequate.
I cannot appreciate a grievance that the depth of the inquiry was
too great. So long as the nature and extent of the inquiry was
adequate to meet the ends of justice in a given case, the
contention that the inquiry was too detailed or extensive, cannot be
upheld.
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28
33. Apart from raising the contention there was no
suggestion as to what the appropriate course should have been in
the present case.
34. The Returning Officer at the request of the Petitioner
called for the records of the Municipal Council of Mangalwedha to
compare the signatures of the said two proposers on the
Petitioner’s nomination form with the specimen signatures in the
record of the Municipal Council of Mangalwedha. The Returning
Officer on a comparison of the signatures found that there were
certain differences and that it was not possible to arrive at a
conclusion on this basis. In these circumstances, no fault can be
found with the approach adopted by the Returning Officer of
entertaining the written complaints and the affidavits. This was a
case of word against word. Indeed, if the Returning Officer had
based his decision only on the oral statement of the other
contesting candidates without satisfying himself that the said two
proposers had in fact disputed their signatures, the Petitioner
may have had a valid grievance against the decision. The written
complaint and affidavits of the said two proposers and their
presence before the Returning Officer ensured their identity and
their stand.
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29
35. Nor do I see anything wrong in the Returning Officer
having entertained the presence of the said two proposers for the
purpose of the inquiry as to the genuineness of their signatures in
the nomination papers of the Petitioner. The Returning Officer
would have been perfectly justified in insisting himself on the
presence of the said two proposers before arriving at his decision
regarding the genuineness of their signatures. Their presence
establishes their identity. Their identity and their presence
established that it was they who had filed the complaints and the
said affidavits. This eliminated a possible substantial dispute viz.
whether the said two proposers were the authors of the written
representation and the affiants stating that their signatures did not
appear on the nomination form of the Petitioner. I do not see any
bar to the Returning Officer having entertained their presence and
having these aspects clarified from them in person. Whether he
ought to have believed them or not is a different matter.
36. It is possible that a written complaint or even an affidavit
may be fabricated. For instance, in the present case, one of the
contesting candidates could have fabricated the complaint and the
affidavit of the said two proposers. The Returning Officer in fact
followed the prudent course by accepting the written complaints
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30
and their affidavits. Indeed he would have been entitled to and
justified in insisting upon the said two proposers filing written
complaints, or even affidavits.
37. It was also submitted that for the same reason the
Returning Officer was not entitled to compare the signatures of the
said two proposers. As I stated earlier, it was the Petitioner who
requested the records of the Municipal Council of Mangalwedha to
be produced to ascertain the genuineness or otherwise of the
signatures of the said two proposers. The Petitioner has denied
the same. It would make no difference. Even if the Returning
Officer did so on his own, I would not consider it objectionable.
Indeed, it was perfectly valid and reasonable for him to have done
so. Section 36(2) entitles him to make such summary inquiry as
he thinks necessary. Where the genuineness of a signature is in
question in an investigation under Section 36(2) the Returning
Officer is entitled to compare the same with the admitted
signatures of a person. This is recognized as one of the modes of
ascertaining the genuineness of a signature even in a trial under
the Indian Evidence Act. In a summary procedure this mode
cannot be objected to especially where the decision is not based
solely thereon. Calling for the admitted signatures of a person
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31
whose signature is disputed is perfectly valid. It establishes the
desire of the Returning Officer to ascertaining the genuineness of
the signatures of the said two proposers. Section 36(2) does not
bar this course adopted by the Returning Officer.
38. There is nothing in the Act that prohibits as a matter of
law the course adopted by the Returning Officer in permitting the
presence of the said two proposers at the inquiry, entertaining the
written complaints and the affidavits filed by them and considering
the same and comparing their disputed signatures with the
admitted signatures. In the facts of the present case, this course
adopted by him was in fact fair and proper. That Section 36(2)
requires a summary inquiry does not prohibit a Returning Officer
from adopting this approach. Section 36 does not limit the extent
of the inquiry if the same can be managed within the time
constraints imposed by Section 36.
If despite the time constraint, which I will refer to later,
within which the Returning Officer is to give his decision on an
objection, he is able to consider material even in addition to or
excess of evidence that may be sufficient to arrive at a decision
there can hardly be any grievance against the same. So long as
the evidence is relevant, I do not see by what process of reasoning
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32
the reliance thereon can be objected to. I can understand a party
raising a grievance against a Returning Officer basing his decision
upon no evidence or in a given case even upon inadequate
evidence. I cannot however understand a grievance that
additional evidence though relevant, was relied upon.
39. In the circumstances, Issue no.3 is answered in the
negative.
Re. Issue No.2: Whether the Returning Officer
committed breach of the provisions of
Sub-section (1) of Section 36 of the
Representation of the People Act,
1951 by entertaining Petitioner’s two
proposers namely; Sau. Jaymala
Purnanand Mhetre and Sharif
Mohammad Badshah Sutar personally
at the time and place of scrutiny of the
nomination and by further accepting
and relying on their Affidavits and
written complaints, as alleged by the
petitioner ?
40. Mr. Patil submitted that though under Section 36(1) of
the said Act, at the time of scrutiny of nominations only the
candidate with his election agents, one of his proposers and one
other person duly authorised in writing by the candidate and no
other persons, are entitled to attend the scrutiny of the
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33
nominations. The said two proposers were physically present
before the Returning Officer at the time of scrutiny and the
Returning Officer entertained their pleas and contentions and also
their written complaints and affidavits. In view thereof, he
submitted that the entire inquiry conducted by the Returning
Officer is vitiated and, consequently, the rejection of the
Petitioner’s nomination is illegal.
41.
I have held earlier while dealing with Issue no.2 that the
Returning Officer was entirely justified in considering the written
representations and affidavits of the said two proposers and
entertaining their presence and their pleas and contentions. If I
am right in this regard, this issue too must necessarily be
answered in the negative.
42. Section 36(1) bars the attendance of all but the four
persons mentioned therein at the place at the time fixed for the
scrutiny of the nominations. The provision correctly construed, is
to the effect that the bar to the attendance of all but the said four
persons is for the purpose of the scrutiny. The words
“…………..may attend at such time and place as the returning
officer may appoint;……….” clarify this position. The words “such
time and place” must be read in conjunction with the opening part
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34
of sub-section (1): “On the date fixed for the scrutiny of
nominations under Section 30…………”.
So read, it is apparent that the bar to any other person
attending at such time and place refers to the time and place for
the scrutiny. In other words, the bar to any other person attending
the venue is for the purpose of the scrutiny.
43. It is nobody’s case that the said two proposers or any
other person in addition to those permitted under Section 36(1)
attended the venue for the scrutiny. The evidence on record
indicates that their attendance before the Returning Officer albeit
at the venue, was for the purpose of the said inquiry, which was
conducted by the Returning Officer.
44. Neither the Act nor the rules thereunder nor even the
handbook for Returning Officers provides for separate venues for
the scrutiny and for the inquiry which a Returning Officer may
hold.
45. The limitation to the number of persons entitled to be
present for the purpose of scrutiny is to ensure that there are no
problems by way of overcrowding or otherwise at the time of
scrutiny, which indeed, is an important part of any election. But,
the limitation is for the purpose of scrutiny and not for the purpose
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35
of or in connection with an inquiry that may be held by the
Returning Officer under sub-section (2) of Section 36. If an
objection is raised and the Returning Officer for the purpose of the
inquiry, desires the attendance of any person or to question or
hear any person or persons, the presence of such person or
persons is not for the purpose of the scrutiny but for the purpose
of enabling the Returning Officer to take a decision in the matter.
That it is so at the same venue would not necessarily make a
difference for such persons do not attend the venue for the
purpose of scrutiny but they do so in connection with the inquiry
and at the direction or with the leave of the Returning Officer.
They do so not for the purpose of examining the nomination
papers but in connection with the inquiry into the objection held by
the Returning Officer.
46. In the circumstances, Issue no.2 is answered in the
negative.
Re. Issue No.1: Whether the Petitioner proves that his
nomination for election to the Local
Authorities Constituency, Solapur of
the Maharashtra Legislative Council
Biennial elections 2003 was
improperly rejected by the Returning
Officer ?
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36
Re. Issue No.4: Whether the Petitioner proves that
result of the election in question, in so
far as it concerns the returned
candidate i.e. Respondent, herein,
has been materially affected by non-
compliance with the provisions of Sub-
sections (1) and (2) of Section 36 of
the Representation of the People Act,
1951 ?
Re. Issue No.5: Whether the election of the
Respondent as member of the
Maharashtra Legislative Council from
the Local Authorities Constituency,
Solapur and the Maharashtra
Legislative Council Biennial Election,
2003 is void and liable to be set aside
on the grounds provided under clause
(c) of sub-section (1) of Section 100 or
both of the Representation of the
People Act, 1951 ?
47. In respect of these issues Mr. Patil submitted firstly that
the order passed by the Returning Officer is in violation of Section
36(6) which makes it mandatory for the Returning Officer in the
event of his rejecting a nomination paper to record in writing a
brief statement of his reasons for such rejection. He submitted
that the impugned order contains only the conclusions but not the
reasons for the decision rejecting the nomination paper of the
Petitioner. Mr. Patil further submitted that the Returning Officer
had failed to consider the relevant material, evidence and
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37
statements during the inquiry. He submitted that the decision
making process was therefore vitiated.
Mr. Patil submitted that the order of the Returning
Officer is therefore void and that the election of the Respondent is
also accordingly void and liable to be set aside under Section 100
(1)(c) and (d)(iv) which read as under :-
“100. Grounds for declaring election to be
void.-(1) Subject to the provisions of sub-
section (2), if the High Court is of opinion-
(a) …………………………………………………….
(b) …………………………………………………….
(c) that any nomination has been
improperly rejected, or
(d) that the result of the election, insofar
as it concerns a returned candidate,has been materially affected-
(iv) by any non-compliance with the
provisions of the Constitution 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.]”
48. I am in agreement with Mr. Patil’s submission that
Section 36(6) makes it mandatory for the Returning Officer to
furnish reasons in the event of his deciding to reject the
nomination paper of a candidate. The question is whether in the
present case the Returning Officer furnished reasons and whether
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38
the Returning Officer considered the relevant material during the
inquiry before coming to his decision, rejecting the nomination
paper of the Petitioner.
49. Two aspects of the decision making process must be
considered in this case. Firstly, whether the inquiry officer
afforded an opportunity to the concerned parties to present their
case and whether the Returning Officer considered the relevant
material.
Secondly, whether the Returning Officer furnished
reasons for his decision as required by Section 36(6).
50. As far the first aspect is concerned, I am satisfied that
the Returning Officer complied with the requirements of law and
afforded all the parties a fair opportunity of presenting their rival
cases. The said Dilip Chougule, who was one of the candidates
had objected in writing to the nomination of the Petitioner alleging
that the said two proposers had not signed the Petitioner’s
nomination and that their signatures were not genuine. The said
two proposers also filed their written complaints and affidavits.
The Returning Officer decided to consider the same as well as
considered the presence of the said two proposers. I have earlier
held that nothing prevented the Returning Officer from doing so in
law.
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39
Having done so, the Returning Officer permitted the
Petitioner to file his own affidavit, the affidavit of five other
proposers and the affidavit of the said Ratan Govind Pandit, who
is the brother of one of the said two proposers viz. Sau. Jaymala
Purnanand Mhetre.
51. The Petitioner confirmed that he filed these affidavits. It
is not his case that he was prevented from doing so by the
Returning Officer. Mr. Patil took me through various parts of the
record to establish that the said affidavits had been filed before the
Returning Officer. I do not think there can be any dispute in this
regard. The affidavits admittedly were filed before the Returning
Officer. This is clear from the order of the Returning Officer itself.
Indeed, Mr.Sawant did not dispute this either. In the
circumstances, it is not necessary to set out the references relied
upon by Mr. Patil to establish the same.
52. The Petitioner also stated in his evidence that the
Returning Officer had adjourned the proceedings with respect to
scrutiny to 3.45 p.m. and in the meantime called for the record
from the Mangalwedha Municipal Council. He further stated that in
the afternoon the Returning Officer “went on verifying the
signatures of these two proposers from the record of
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40
Mangalwedha Municipal Council and made a comparison of the
signature of the said two proposers”.
The Petitioner’s contention that this procedure was
wrong, is another matter, which I have already deal with. What is
important for the present purpose is to note that the Returning
Officer did in fact examine the record which I have held to be
relevant.
53.
In paragraph 18 of his cross-examination, the Petitioner
stated that he was represented by three Advocates who were
allowed to argue on his behalf before the Returning Officer for
about 25 minutes. He further stated that the affidavits and
representations were placed before the Returning Officer and the
submissions were heard by the Returning Officer who thereafter
gave his decision on the same day.
54. Thus, the Returning Officer had before him the said
affidavits, the record of the Mangalwedha Municipal Council, the
presence of the concerned parties and he heard arguments of not
merely the parties but their Advocates as well. Considering the
nature of the proceedings, this was sufficient to comply with the
provisions of law to enable the Returning Officer to come to a
conclusion regarding the validity of the Petitioner’s nomination
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41
forms and the genuineness of the signatures of the said two
proposers. It is significant to note that it is not the Petitioner’s case
that he wanted to produce any other evidence but was not given
an opportunity of doing so.
55. Mr. Patil submitted that the Petitioner had also made an
application before the Returning Officer wherein he had alleged
that the affidavit of the said two proposers had been got made by
the Respondent through an Advocate who was also a notary and
that the said Advocate has notarized the said affidavits and
submitted the same to the Returning Officer. The Petitioner
alleged that the notary’s record does not bear the signatures of the
said two proposers and that the notary did not have a copy of the
said affidavit. The Petitioner therefore stated that it would be just
that the said Notary be directed to attend with the record, including
a copy of the said affidavits. This request was not acceded to. He
submitted therefore that the Returning Officer did not even
consider the relevant evidence.
56. The Returning Officer would certainly have been justified
in calling for the records of the notary. I do not however think that
his not having done so, vitiates the decision making process.
Strictly, it was not necessary for the affidavits of the parties to be
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42
notarized or even for their affidavits being filed. The Returning
Officer could well have acted on the basis of even the written
complaints especially in view of the presence of the said two
proposers, whose signatures were in question. He obviously
considered the material before him adequate in view of the
presence of the affiant themselves and did not consider the
presence of the notary necessary for the purpose of coming to his
conclusion which he was bound to in a very short time. I do not
find this decision of the Returning Officer by itself sufficient to hold
that he excluded relevant material vitiating the entire decision
making process.
57. We have seen thus far that the Returning Officer
considered evidence which was relevant and did not consider any
evidence which was irrelevant. I have also noted that adequate
opportunity had been granted to all the parties for presenting their
respective cases.
58. Mr. Patil however contended further that the impugned
order does not contain any reasons. He submitted therefore that
the Petition ought to be allowed on this ground alone.
59. No doubt, reasons for a decision under Section 36(6)
are necessary. However, the qualitative and quantitative
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43
adequacy of reasons of a quasi-judicial order must depend upon
the nature of the proceeding. The extent of reasons and the depth
of consideration to be reflected in a quasi-judicial order, must of
necessity depend upon the nature of the proceeding.
In Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai
Patel & Ors. (2006) 8 Supreme Court Cases, 200, the Supreme
Court held :-
“12. Article 226 of the Constitution is de-
signed to ensure that each and every authori-
ty in the State, including the State, acts bona
fide and within the limits of its power. Howev-
er, the scope of judicial review in administra-
tive matters has always been a subject-matter
of debate despite a plethora of case-law on
the issue. Time and again attempts have
been made by the courts to devise or craft
some norms, which may be employed to as-
sess whether an administrative action is justi-
ciable or not. But no uniform rule has been or
can be evolved to test the validity of an ad-
ministrative action or decision because the
extent and scope of judicial scrutiny depends
upon a host of factors, like the nature of the
subject-matter, the nature of the right affect-
ed, the character of the legal and constitution-
al provisions applicable, etc. While appreciat-
ing the inherent limitations in exercise of the
power of judicial review, the judicial quest has
been to find and maintain a right and delicate
balance between the administrative discretion
and the need to remedy alleged unfairness in
the exercise of such discretion.”
16. In State of U.P. v. Johri Mal (2004) 4 SCC,
714 this Court has observed thus: (SCC
p.730, para 28)
“28. The scope and extent of power of the
judicial review of the High Court contained in
Article 226 of the Constitution of India would
vary from case to case, the nature of the or-
der, the relevant statute as also the other rel-
evant factors including the nature of power
exercised by the public authorities, namely,::: Downloaded on – 09/06/2013 13:51:52 :::
44whether the power is statutory, quasi-judicial
or administrative. The power of judicial review
is not intended to assume a supervisory roleor don the robes of the omnipresent. The
power is not intended either to review gover-
nance under the rule of law nor do the courtsstep into the areas exclusively reserved by
the suprema lex to the other organs of the
State. Decisions and actions which do not
have adjudicative disposition may not strictly
fall for consideration before a judicial reviewcourt.”
60. A consideration of Mr. Patil’s submission must therefore
be prefaced with an analysis of the proceedings involved in the
decision making process under Section 36(6).
61. Proceedings such as these, by virtue of Section 36 are
summary in nature. As submitted by Mr. Patil himself, the
Returning Officer discharges a quasi-judicial function.
62. Mr.Sawant’s submission that the provisions of Section
36(6) must be read together with the other provisions of the Act as
a whole and not in isolation is well founded. The quality and
extent of the decision taken by the Returning Officer under Section
36(6) must be judged in the light of the importance and enormity of
the tasks required of the Returning Officer with such constraints of
time. As pointed out by Mr. Sawant in great detail, the Returning
Officer has to scrutinize a number of things, ensure compliance of
various requirements and to perform diverse duties within a short
span of merely three days.
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45
Section 30 of the said Act reads thus :-
“30. Appointment of dates for nomina-
tions, etc.– As soon as the notification callingupon a constituency to elect a member or
members is issued, the Election Commission
shall, by notification in the Official Gazette,
appoint–
(a) the last date for making nominations,
which shall be the seventh day after the date
of publication of the first-mentioned notifica-
tion or, if that day is a public holiday, the nextsucceeding day which is not a public holiday;
(b) the date for the scrutiny of nominations,
which shall be the day immediately following
the last date for making nominations or, if thatday is a public holiday, the next succeeding
day which is not a public holiday;
(c) the last date for the withdrawal of can-
didatures, which shall be the second day afterthe date for the scrutiny of nominations or, if
that day is a public holiday, the next succeed-
ing day which is not a public holiday;
(d) the date or dates on which a poll shall,
if necessary, be taken, which or the first of
which shall be a date not earlier than the[fourteenth day] after the last date for the
withdrawal of candidatures; and
(e) the date before which the election shall
be completed.”
63. A conjoint reading of Sections 30 and 36 and the various
provisions of the Act indicate that the decision of the Returning
Officer on an application is to be given within a period of one or
two days. It is in this context that one must examine and consider
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46
the matter.
64. In the present case, for instance, as is evidenced by the
notice of election itself, the nomination papers were to be delivered
by the candidates upto 3.00 p.m. on 14.11.2003. The scrutiny was
to be taken up at 11.00 a.m. On 15.11.2003. The notice of
withdrawal was permitted to be delivered before 3.00 p.m. on
17.11.2003. The decision to any objection was to be given by the
next day at the latest.
15.11.2003 itself.
In the present case, it was given on
It is not really necessary to enumerate the functions to
be performed by the Returning Officer between the time of scrutiny
and the time of his decision. Suffice it to note that for instance, in
this very case, he had to satisfy himself under Section 33(4) that
the names and electoral roll numbers of the candidates and their
proposers, who were twenty in number, as entered in the
nomination paper, were the same as those entered in the electoral
rolls. He had therefore to check the records of twenty proposers.
Under Section 36(2) he has to examine the nomination papers for
various other aspects including whether there has been a failure to
comply with a the provisions of Sections 33 or 34.
65. Section 36(6) emphasizes that the Returning Officer
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47
shall record in writing “a brief statement of his reasons” for such
rejection. The use of the words “a brief statement” is obviously
deliberate. The extent of reasons to be recorded in a proceeding
under Section 36 of the said Act would differ, for instance, from the
decision of a Disciplinary Committee, whether the decision of the
Disciplinary Committee is subject to an internal appeal or not.
There are atleast two reasons for this.
(A).
Firstly, in a disciplinary proceeding there are no time
constraints atleast to the extent present in the said Act. The
Disciplinary Authority must consider the entire evidence before
him. Often the Disciplinary Authority is bound to permit the parties
to lead evidence. The discretion conferred on a Returning Officer
under Section 36(2) is greater. He is entitled to hold the summary
inquiry as he thinks necessary.
In Virendra Kumar Satyawadi v. The State of Punjab, AIR
1956, Supreme Court, 153 the Supreme Court held that the power
under Section 32 though judicial in character, authorises the
Returning Officer to come to a decision “after such summary
enquiry, if any, as he thinks necessary”. The Supreme Court held
that this means that the parties have no right to insist on producing
evidence which they may desire to adduce in support of their
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48
case.
(B). Secondly, the order of the Disciplinary Authority or even
the Appellate Authority is subject to judicial review but only on a
limited basis. The judicial review is not a fresh trial. Normally, it is
the decision making process and not the decision itself that is to
be scrutinized. Even the award of an arbitrator can be set aside
only on the limited grounds under Section 30 of the Indian
Arbitration Act, 1940 or Section 34 of the Arbitration and
Conciliation Act, 1996. On the other hand, a petition under the
said Act is an original proceeding in which all contentions of the
parties are kept open. In Birad Mal Singhvi v. Anand Purohit, 1988
(Supp) Supreme Court Cases, 604 the Supreme Court held :-
“10. ……………………………………………………..
……………………………………………………………….
But his decision is not final. In an election pe-
tition it is open to an election petitioner to
place cogent evidence before the High Court
to show that the candidate whose nomination
paper was rejected had in fact attained the
age of 25 years on the relevant date. It is
open to the High Court to take a final decisionin the matter notwithstanding the order of the
Returning Officer rejecting the nomination pa-
per. If on the basis of the material placed be-
fore the High Court it is proved that the candi-
date whose nomination paper had been re-
jected was qualified to contest the election it
is open to the High Court to set aside the
election. Enquiry during scrutiny is summary
in nature as there is no scope for any elabo-
rate enquiry at that stage. Therefore it is open
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49before the High Court to show that the return-
ing officer’s order rejecting the nomination pa-
per was improper. It should be borne in mind
that the proceedings in an election petition
are not in the nature of appeal against the or-
der of the returning officer. It is an original
proceeding. In the instant case it was open to
the respondent election petitioner to place
material before the High Court to show that
the two candidates were qualified and theirnomination paper was improperly rejected.”
In my opinion therefore, the reasons required to be
recorded under Section 36(6) would be far less in terms both
quantitatively as well as qualitatively than in case of certain other
quasi judicial proceedings.
66. The Returning Officer admittedly examined the record of
the Municipal Council of Mangalwedha in detail. He compared the
disputed signatures of the said two proposers on the Petitioner’s
nomination with their admitted signatures in the record of the
Municipal Council of Mangalwedha. He found that there were
certain differences in the two sets of signatures. He however
observed that it was not possible to arrive at a conclusion on this
basis.
67. I do not read the order as rejecting this basis altogether.
I read the order to mean that the differences in the two sets of
signatures by themselves were not sufficient to arrive at a
conclusion.
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50
68. Indeed, the Returning Officer could well have held that
in view of the summary nature of the inquiry that he is expected to
hold, the differences in the two sets of signatures albeit slight, was
sufficient to reject the Petitioner’s nomination. He however did not
do so.
69. What appears to have weighed with the Returning
Officer is that the said two proposers appeared before him in
person and submitted their affidavits and that their identity
therefore was not in dispute. The Returning Officer therefore was
faced with the word of the said two proposers against the word of
the Petitioner, the other five proposers and the brother of one of
the said two proposers. I appreciate that there is no analysis of
the differing affidavits. In these circumstances, the Returning
Officer could well have believed the Petitioner’s case. He however
chose to believe the case of the said two proposers who denied
their signatures. The Returning Officer being impressed by the
presence of the said two proposers was strongly commented upon
by Mr. Patil. Mr. Patil submitted that even the Petitioner was
personally present and there was no reason therefore why the
Returning Officer chose to accept the word of the said two
proposers. That he may well have adopted this approach with
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51
equal justification, would not warrant my order holding that his
rejection of the Petitioner’s nomination was improper. In that case
the Respondent could with equal force have raised the same
contention.
70. Added to these facts is that the Returning Officer was of
the view that the onus was upon the Petitioner to prove the
genuineness of the signatures of the said two proposers. This
view cannot be faulted. The initial burden was on the Petitioner to
prove that the signatures were of the said two proposers. The
Returning Officer in these circumstances held that the Petitioner
could not produce any evidence which would have conclusively
proved that the disputed proposers had originally signed his
nomination papers but changed their mind later on.
71. In the circumstances, it is difficult to accept that the
order of the Returning Officer does not contain any reasons.
Indeed, he may not have explained in great detail why he
preferred one set of affidavits to the other. He may not have in
any detail discussed the contents of the said affidavits. However,
considering the nature of requirements under Section 36(6) I am of
the view that the order of the Returning Officer contained
adequate reasons.
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52
72. In Mohd. Yasin Shah v. Ali Akbar Khan (1977) 2 Supreme
Court Cases, 23 the Supreme Court while dealing with Section 47 of
the Jammu and Kashmir Representation of People Act, 1957,
held:-
“It is true that the Returning Officer has not
given any clear finding on this point, but
Section 47 of the Act does not require a well
reasoned decision. All that is necessary isthat the Returning Officer should apply his
mind and determine the question in asummary manner.”
The opening part of Section 47(2) and Sub-section (6) of
Section 47 of The Jammu & Kashmir Representation of the
People Act, 1957 are identical to the opening part of Section 36(2)
and Sub-section (6) of Section 36 of the said Act.
73. The Returning Officer also set out the arguments of the
learned counsel appearing on behalf of the Petitioner and the
Respondents. The third submission of the learned counsel
appearing on behalf of the Petitioner before the Returning Officer
was that the affidavit filed by the said two proposers does not have
any evidentiary value.
Mr.Sawant submitted that the argument was in fact
limited to the Petitioner’s contention in grounds `C’ and `D’ of the
petition viz. that in a proceeding under Section 36(2) it would not
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53
be open to the Returning Officer to consider the said affidavits at
all. In other words, according to him, before the Returning Officer
the affidavits filed by and in support of the Petitioner were not even
relied upon. However, in view of my above conclusions, it is not
necessary to express any opinion in this regard.
74. Mr. Patil submitted that there was no reason for the
Petitioner to have forged the signatures of the said two proposers.
The Petitioner could easily have obtained the signatures of ten
persons on his nomination form. The submission definitely
sounds logical. However, the merits of the matter have not been
considered in view of the manner in which this matter has
proceeded.
75. While I intend dismissing the petition, I wish to make it
expressly clear that my decision to dismiss this petition ought not
to be construed as my having disbelieved the Petitioner’s case on
facts at all. In other words, this judgment ought not to be
construed as my having disbelieved the Petitioner’s case that the
said two proposers had in fact signed his nomination papers or my
having believed the Respondent’s case or the case of the said two
proposers that they had not signed the Petitioner’s nomination
forms.
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54
76. Mr.Sawant submitted that the petition ought to be
dismissed on the ground of non-joinder of necessary parties as all
the candidates had not been impleaded.
77. The submission is not well founded. Sections 82 and 84
of the said Act read as under :-
“82. Parties of the petition.-A petitioner
shall join as respondents to his petition-
(a) where the petitioner, in addition to
claiming declaration that the election of all or
any of the returned candidates is void, claims
a further declaration that he himself or anyother candidate has been duly elected, all the
contesting candidates other than the
petitioner, and where no such further
declaration is claimed, all the returned
candidates; and
(b) any other candidate against whom
allegations of any corrupt practice are made
in the petition.”
In the present petition, the further declaration that the
Petitioner himself or any other candidate has been duly elected
has not been sought. In that event, the plain language of Section
82 requires the Petitioner to join only all the returned candidates.
The Respondent is the only returned candidate. Mr.Sawant’s
submission is therefore rejected.
78. In the circumstances, the petition is dismissed. There
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55
shall however be no order as to costs.
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