{"id":256386,"date":"2010-03-09T00:00:00","date_gmt":"2010-03-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/arun-vs-returning-officersub-on-9-march-2010"},"modified":"2018-06-18T18:07:32","modified_gmt":"2018-06-18T12:37:32","slug":"arun-vs-returning-officersub-on-9-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/arun-vs-returning-officersub-on-9-march-2010","title":{"rendered":"Arun vs Returning Officer\/Sub … on 9 March, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Arun vs Returning Officer\/Sub … on 9 March, 2010<\/div>\n
Bench: V.R. Kingaonkar<\/div>\n
                               (1)\n\n\n           IN THE HIGH COURT OF JUDICATURE OF BOMBAY,\n\n\n\n\n                                                               \n                       BENCH AT AURANGABAD\n\n\n\n\n                                       \n                 WRIT PETITION NO. 5805 OF 2009\n\n\n\n\n                                      \n    Arun s\/o Laxmanrao Alne,\n    R\/o Kinwat, Tq. Kinwat,\n    District Nanded.                                      PETITIONER\n\n\n\n\n                              \n         VERSUS     \n    1.   Returning Officer\/Sub Divisional\n         Officer, Kinwat for Election of \n                   \n         Municipal of Municipal Council,\n         Kinwat, held in Nov-Dec. - 2007.\n    2.   Laxmipati s\/o Bapurao Donepelliwar,\n         R\/o Kinwat, Taluka Kinwat,\n         District Nanded.\n      \n\n\n    3.   Ashatai Udhavrao Kadam\n    4.\n   \n\n\n\n         Ashok s\/o Gomaji Patil\n    5.   Suresh Dattatraya Mhaske\n    6.   Maroti Kanba Sankalwad\n         Respondents No. 3 to 6 are\n         r\/o Kinwat, Taluka Kinwat,\n\n\n\n\n\n         District Nanded.                                 RESPONDENTS \n\n         .....\n    Mr. R.S. Deshmukh, advocate for the petitioner.\n    Mr. S.T. Shelke, advocate for respondent No. 1.\n\n\n\n\n\n    Mr. V.D. Salunke, advocate for respondent No. 2.\n    None for the respondents No. 3 to 6.\n         .....\n\n                               [CORAM : V.R. KINGAONKAR, J.]\n            [DATE OF JUDGEMENT RESERVED   : 4th March, 2010]\n            [DATE OF JUDGEMENT PRONOUNCED : 9th March, 2010] \n\n\n\n\n                                       ::: Downloaded on - 09\/06\/2013 15:41:31 :::\n                                       (2)\n\n\n\n\n                                                                        \n    JUDGEMENT :  \n<\/pre>\n
    1.         By   this   petition,   the   petitioner   challenges <\/p>\n
    judgement   and   order   rendered   by   learned   Adhoc   District <\/p>\n
    Judge-2, Nanded in Election Petition No. 4\/2009 whereby <\/p>\n
    and whereunder his election from municipal ward No. 17, <\/p>\n
    Samatanagar, as member of Municipal Council, Kinwat was <\/p>\n
    declared   null   and   void   and   the   respondent   No.   2   was <\/p>\n
    declared as the elected candidate in his stead.\n<\/p>\n
    2.         Municipal Elections were declared in the month <\/p>\n
    of   October,   2007   and   pursuant   thereto,   election <\/p>\n
    programme   for   Municipal   Council,   Kinwat   was   published.\n<\/p>\n
    The   nomination   forms   were   required   to   be   submitted <\/p>\n
    before 2nd of November, 2007 uptill 3 p.m.  The scrutiny <\/p>\n
    of   the   nomination   forms   was   scheduled   on   3rd  November, <\/p>\n
    2007.   The voting was scheduled on 25th  November, 2007.\n<\/p>\n
    The   petitioner   was   declared   as   elected   candidate   for <\/p>\n
    ward   No.   17   on   27th  November,   2007.     He   had   secured <\/p>\n
    largest   votes.   There   were   six   (6)   candidates   including <\/p>\n
    the   petitioner   and   the   respondents   No.   2   to   6   in   the <\/p>\n
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\n                                      (3)<\/span><\/p>\n
    fray.   The respondent No. 2 had secured second highest <\/p>\n
    votes.\n<\/p>\n
    3.         The   respondent   No.   2   filed   Election   Petition <\/p>\n
    under   section   21   of   the   Maharashtra   (Municipal <\/p>\n
    Councils), (Nagar Panchayats) and (Industrial Townships <\/p>\n
    Act, 1965 (for short, “the Municipal Councils Act”).  He <\/p>\n
    challenged election of the petitioner on the ground that <\/p>\n
    the   nomination   form   was   not   accompanied   by   valid <\/p>\n
    affidavit   as   required   under   the   guidelines   of   the <\/p>\n
    Election   Commission.     He   further   asserted   that   the <\/p>\n
    affidavit   was   invalid   since   required   adhesive   stamps <\/p>\n
    were not affixed as per provisions of the Bombay Stamp <\/p>\n
    Act, 1958.  He further asserted that the nomination form <\/p>\n
    was incomplete in as much as the information as required <\/p>\n
    in one of the forms was not filled in by the petitioner.\n<\/p>\n
    He alleged that the petitioner was ineligible to contest <\/p>\n
    the   municipal   election   as   member   of   the   Municipal <\/p>\n
    Council   because   he   had   incurred   disqualification   under <\/p>\n
    section   44   (1)   (e)   of   the   Municipal   Councils   Act.   The <\/p>\n
    District Collector had rendered order dated 11th October, <\/p>\n
    2006 whereby the petitioner was disqualified to continue <\/p>\n
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\n                                      (4)<\/span><\/p>\n
    as Member of the Municipal Council for the remainder of <\/p>\n
    term.        It   was   alleged   that   the   stigmatic <\/p>\n
    disqualification   had   continued   and,   therefore,   the <\/p>\n
    petitioner could not be allowed to contest the municipal <\/p>\n
    election nor was eligible to continue in the office. The <\/p>\n
    respondent No.2, therefore, sought declaration that the <\/p>\n
    election   of   the   petitioner   was   null   and   void   and   the <\/p>\n
    same   stood   cancelled.     He   further   sought   declaration <\/p>\n
    that he may be declared as elected candidate from ward <\/p>\n
    No. 17 or alternatively sought afresh election for the <\/p>\n
    said ward.\n<\/p>\n
    4.         The   petitioner   denied   all   the   material <\/p>\n
    averments made by the respondent No. 2. He pointed out <\/p>\n
    that the order of the Collector, passed under section 44 <\/p>\n
    (1) (e) of the Municipal Councils Act, was set aside by <\/p>\n
    the Hon’ble the Chief Minister in appellate jurisdiction <\/p>\n
    under section 44 (4) of the Municipal Councils Act, vide <\/p>\n
    order   dated   21st  May,   2008.     He,   therefore,   submitted <\/p>\n
    that   the   disqualification   could   be   held   as   de-clamped.\n<\/p>\n
    He   denied   that   the   affidavit   filed   alongwith   the <\/p>\n
    nomination   papers   was   invalid.   The   petitioner   alleged <\/p>\n
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\n                                    (5)<\/span><\/p>\n
    that he was framed in a false criminal case because he <\/p>\n
    is   member   of   scheduled   caste   and   the   political   foes <\/p>\n
    could   not   tolerate   his   presence   in   the   Municipal <\/p>\n
    Council. Consequently, he urged for the dismissal of the <\/p>\n
    Election Petition.\n<\/p>\n
    5.        The learned Adhoc District Judge-2 held that as <\/p>\n
    on   the   date   of   filing   the   nomination   form,   the <\/p>\n
    petitioner   was   ineligible   due   to   disqualification <\/p>\n
    incurred   by   him   vide   order   dated   11th  October,   2006 <\/p>\n
    passed by the Collector under section 44 (1) (e) of the <\/p>\n
    Municipal   Councils   Act.     The   learned   Adhoc   District <\/p>\n
    Judge further held that nomination of the petitioner was <\/p>\n
    invalid for yet another reason that the affidavit sworn <\/p>\n
    in by him was not in keeping with the guidelines issued <\/p>\n
    by the Election Commission and there was no proper stamp <\/p>\n
    affixed   to   that   affidavit.     On   these   grounds,   the <\/p>\n
    election of the petitioner was set aside by allowing the <\/p>\n
    Election Petition. The learned Adhoc District Judge held <\/p>\n
    that   since   the   respondent   No.   2   had   secured   second <\/p>\n
    highest   votes,   there   was   no   necessity   to   order   re-\n<\/p>\n
    election   for   ward   No.   17   of   the   Municipal   Council.\n<\/p>\n
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\n                                       (6)<\/span><\/p>\n
    Hence,   the   Election   Petition   was   allowed,   the   election <\/p>\n
    of   the   petitioner   was   cancelled   and   in   his   place,   the <\/p>\n
    respondent No. 2 was declared as elected candidate.\n<\/p>\n
    6.         Heard   learned   counsel   for   the   contesting <\/p>\n
    parties. Though the respondents No. 3 to 6 were served, <\/p>\n
    yet, none of them appeared.\n<\/p>\n
    7.<\/p>\n
               To   clear   the   deck,   it   may   be   stated   that   the <\/p>\n
    petitioner   had   challenged   the   order   rendered   by   the <\/p>\n
    Collector   under   section   44   (1)   (e)   whereby   he   was <\/p>\n
    disqualified   to   continue   as   Member   for   the   remaining <\/p>\n
    term of the Municipal Council. The remaining term was to <\/p>\n
    come   to  an   end   after   fresh   elections   which   were  to   be <\/p>\n
    held   on   25th  November,   2007.   The   legal   impact   of   the <\/p>\n
    order dated 11-10-2006 passed by the Collector was that <\/p>\n
    the   petitioner’s   office   could   be   deemed   as   vacated   by <\/p>\n
    him.     It   was   alleged   that   he   had   illegally   encroached <\/p>\n
    over   certain   municipal   land   by   fixing   barbed   wire <\/p>\n
    fencing around compound of his constructed building. The <\/p>\n
    Collector   found   that   though   the   petitioner   was   called <\/p>\n
    upon   to   demolish   wall   and   remove   the   barbed   wire <\/p>\n
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\n                                      (7)<\/span><\/p>\n
    fencing, yet, he had not complied with such directions <\/p>\n
    and,   therefore,   had   incurred   disqualification   under <\/p>\n
    section 44 (1) (e).  The petitioner was prosecuted vide <\/p>\n
    a   criminal   case   (R.C.C.   No.   52\/2003)   for   the   alleged <\/p>\n
    offence punishable under section 52 (1) of the Municipal <\/p>\n
    Councils   Act.     It   is   undisputed   that   the   learned <\/p>\n
    Judicial Magistrate (F.C.), Kinwat acquitted him of the <\/p>\n
    said charge as per judgement dated 28th  September, 2007 <\/p>\n
    after   due   trial.     There   is   no   dispute   about   the   fact <\/p>\n
    that   the   petitioner   had   preferred   appeal   under   section <\/p>\n
    44   (4)   of   the   Municipal   Councils   Act.   The   Hon’ble   the <\/p>\n
    Chief   Minister,   by   order   dated   21st  May,   2008   (Exh-E), <\/p>\n
    allowed his appeal.\n<\/p>\n
    8.         Questions involved in this petition are :\n<\/p>\n
               (i)        Could   it   be   said   that   the   petitioner <\/p>\n
               was ineligible and disqualified to contest the <\/p>\n
               municipal  election   for  the   reason  that   at  the <\/p>\n
               time of filing of nomination form, the adverse <\/p>\n
               order rendered under section 44 (1) (e) of the <\/p>\n
               Municipal Councils Act was in existence ?\n<\/p><\/blockquote>\n
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\n                                      (8)<\/span><\/p>\n
               (ii)       Whether   the   nomination   of   the <\/p>\n
               petitioner was patently illegal due to alleged <\/p>\n
               defects   noticed   from   the   supportive   affidavit <\/p>\n
               filed by him alongwith the nomination papers ?\n<\/p><\/blockquote>\n
               (iii)      Was   it   legally   permissible   for   the <\/p>\n
               Court below to declare the respondent No. 2 as <\/p>\n
               an elected candidate when there were more than <\/p>\n
               two (2) candidates in the fray and the case was <\/p>\n
               not   of   recrimination   or   causing   of   votes   in <\/p>\n
               favour   of   the   petitioner   due   to   any   corrupt <\/p>\n
               practice ?\n<\/p><\/blockquote>\n
    9.         True, the petitioner did not file copy of stay <\/p>\n
    order before the learned Adhoc District Judge during the <\/p>\n
    course   of   hearing   of   the   Election   Petition   and, <\/p>\n
    therefore,   such   copy   of   the   order   dated   8th  November, <\/p>\n
    2006   cannot   be   looked   into   while   deciding   the   present <\/p>\n
    petition.   The   written   statement   of   the   petitioner   did <\/p>\n
    not refer to the fact that the Collector’s order dated <\/p>\n
    11th  October, 2006 was stayed by the competent authority <\/p>\n
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\n                                      (9)<\/span><\/p>\n
    on 8th  November, 2006.   Obviously, there was no warrant <\/p>\n
    for   the   learned   Adhoc   District   Judge   to   assume   that <\/p>\n
    there was stay granted by the competent authority and, <\/p>\n
    therefore, the Collector’s order could not be considered <\/p>\n
    so as to infer disqualification of the petitioner.   The <\/p>\n
    petitioner   seems   to   have   neglected   in   raising   plea   in <\/p>\n
    the   context   of   the   interim   stay   order   issued   by   the <\/p>\n
    competent   authority.   Still,   however,   it   cannot   be <\/p>\n
    overlooked that the petitioner had categorically pleaded <\/p>\n
    that the Collector’s order dated 11th  October, 2006 was <\/p>\n
    set   aside   by   the   competent   authority   i.e.   the   Hon’ble <\/p>\n
    the   Chief   Minister   by   virtue   of   order   dated   21st  May, <\/p>\n
    2008.     This   fact   was   brought   to   the   notice   of   the <\/p>\n
    learned   Adhoc   District   Judge.     He   had   further   pointed <\/p>\n
    out that he was acquitted by the Criminal Court in the <\/p>\n
    criminal case    bearing R.C.C. No. 52\/2003. The learned <\/p>\n
    Adhoc   District   Judge   observed   that   though   the <\/p>\n
    disqualification order was set aside by the Hon’ble the <\/p>\n
    Chief   Minister   on   21st  May,   2008,   yet,   the   stigma   of <\/p>\n
    disqualification was very much present as on the date of <\/p>\n
    filing of the nomination form i.e. on 2nd November, 2007.\n<\/p>\n
    Thus, inspite of removal of the disqualification as per <\/p>\n
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\n                                      ( 10 )<\/p>\n
    order dated 21st May, 2008 in appeal under section 44 (4) <\/p>\n
    of the Municipal Councils Act, the petitioner was held <\/p>\n
    disqualified   for   the   purpose   of   his   nomination   as   a <\/p>\n
    candidate for ward No. 17.\n<\/p>\n
    10.        Mr. Salunke, learned counsel for the respondent <\/p>\n
    No. 2 contended that the petitioner was disqualified due <\/p>\n
    to the juxtaposition available as on the date of filing <\/p>\n
    of the nomination form in view of section 16 (1) (a-1) <\/p>\n
    (ii) of the Municipal Councils Act.  He argued that the <\/p>\n
    stigmatic   disqualification   might   have   been   de-clamped <\/p>\n
    subsequently on 21st  May, 2008, yet, the nomination form <\/p>\n
    of   the   petitioner   could   not   have   been   accepted   on   2nd <\/p>\n
    November, 2007 and hence, he was ineligible to contest <\/p>\n
    the municipal election.   Mr. Salunke would submit that <\/p>\n
    the very foundation of the nomination of the petitioner <\/p>\n
    was   illegal   and,   therefore,   the   view   taken   by   the <\/p>\n
    learned Adhoc District Judge cannot be faulted with.  I <\/p>\n
    do not agree.  The learned Adhoc District Judge ought to <\/p>\n
    have properly appreciated the legal impact of the order <\/p>\n
    rendered by the appellate authority.  It is well settled <\/p>\n
    that   when   an   appeal   is   allowed   and   the   order   under <\/p>\n
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\n                                      ( 11 )<\/p>\n
    appeal   is   set   aside,   then   it   stands   legally   vanished <\/p>\n
    from   the   day   one   of   such   order.     It   does   not   become <\/p>\n
    valid   for   the   period   between   passing   of   the   order   and <\/p>\n
    the order of the appellate authority whereby it comes to <\/p>\n
    an   end.     It   mean   to   say,   the   order   of   the   Collector <\/p>\n
    ought to have been held as retrospectively wiped out due <\/p>\n
    to the appellate order dated 21st  May, 2008 which stood <\/p>\n
    merged in the order of the lower authority.\n<\/p>\n
    11.        In  “Baby   Samuel   v.   Tukaram   Laxman   Sable   and  <\/p>\n
    others<\/a>”   1995   Supp   (4)   S.C.C.   215,   the   Apex   Court   held <\/p>\n
    that once the removal order in relation to the President <\/p>\n
    of   Municipal   Council   was   set   aside,   the   consequential <\/p>\n
    action   alongwith   the   removal   order   cannot   stand.     The <\/p>\n
    Apex Court observed :\n<\/p>\n
                “Because the State Government did not pass any
\n                orders   on   the   stay   petition   filed   by   the <\/p>\n
                appellant in his appeal preferred against the
\n                orders   of   removal\/disqualification,   the
\n                Collector notified and held an election to the
\n                office of the President whereat Shri Sable was
\n                elected as President. This election was again <\/p>\n
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\n                                      ( 12 )<\/p>\n
               a   consequence   of   the   removal\/disqualification  <\/p>\n
               of   the   appellant   by   the   Collector.     If   so,
\n               once   the   order   of   removal\/disqualification   is <\/p>\n
               set aside by the Government, the appellant is
\n               entitled   to   be   put   back   in   the   same   position
\n               which   he   was   in   before   he   was   removed.     In <\/p>\n
               other words not only should he be restored to
\n               the   Councillorship   but   also   to   the   office   of
\n               the   President,   Shri   Sable   was   elected   as   the  <\/p>\n
               President   in   the   vacancy   caused   by   the <\/p>\n
               removal\/disqualification   of   the   appellant   and
\n               once   the   said   removal\/disqualification   of   the <\/p>\n
               appellant   goes,   the   consequential   action
\n               cannot   stand;   it   falls   to   ground   along   with
\n               the   order   of   removal,   Shri   Sable   must <\/p>\n
               therefore yield ground to the appellant.”\n<\/p><\/blockquote>\n
    12.        The   learned   Adhoc   District   Judge   committed <\/p>\n
    patent   error   while   holding   that   the   petitioner   was <\/p>\n
    ineligible   to   contest   the   election   on   account   of <\/p>\n
    disqualification   under   section   44   (1)   (e)   of   the <\/p>\n
    Municipal   Councils   Act   as   per   order   of   the   Collector.\n<\/p>\n
    It is worthwhile to notice the purport of section 16 of <\/p>\n
    the   Municipal   Councils   Act.   Admittedly,   the   petitioner <\/p>\n
    was not convicted for any offence at the relevant time <\/p>\n
    and no other provision except section 16 (1) (a-1) (ii) <\/p>\n
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\n                                   ( 13 )<\/p>\n
    of the Municipal Councils Act can be considered so as to <\/p>\n
    examine   whether   he   was   disqualified   for   becoming <\/p>\n
    councillor. Section 16 (1) (a-1) (ii) reads as follows:\n<\/p>\n
             “16. Disqualifications               for                becoming
\n             Councillor.-  (1)  No   person  shall  be  qualified
\n             to become a Councillor whether by election, or  <\/p>\n
             nomination, who, –\n<\/p><\/blockquote>\n
             (a-1)    ig has been so disqualified by or under
\n             any law,-\n<\/p><\/blockquote>\n
             (i)         *****\n                    \n             (ii)        made by the legislature of the State  \n             of Maharashtra; or;\n              (a)        has   been   convicted   by   a   Court   in  \n      \n\n\n<\/pre>\n
              India   of   any   offence   and   sentenced   to <\/p>\n
              imprisonment   for   not   less   than   two   years,
\n              unless a period of five years, or such lesser
\n              period   as   the   State   Government   may   allow   in <\/p>\n
              any   particular   case,   has   elapsed   since   his
\n              release; or
\n             (aa)        has   at   any   time   after   the
\n             commencement of the Maharashtra Municipalities  <\/p>\n
             and   other   Provisions   (Amendment)   Act,   1974,
\n             (Mah.   IV   of   1974),   been   convicted   of   an
\n             offence   punishable   under   Section   153-A,   or
\n             sub-section (2) or (3) of section 505, of the
\n             Indian   Penal   Code<\/a>,   unless   a   period   of   five  <\/p>\n
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\n                            ( 14 )<\/p>\n
      years   has   elapsed   since   the   date   of   such  <\/p>\n
      conviction; or
\n      (ab)       has   been   convicted   of   an   offence  <\/p>\n
      punishable   under   the   Untouchability   (Offenes)
\n      Act,   1955   (XXII   of   1955)   and   sentenced   to
\n      imprisonment   for   any   term   or   fine   unless   a  <\/p>\n
      period   of   (six   years),   has   elapsed   since   his
\n      release; or
\n      (ac)       has   been   convicted   by   a   Court   in  <\/p>\n
      India of any offence involving moral turpitude  <\/p>\n
      unless   a   period   of   (six   years),   has   elapsed
\n      since the date of such conviction; or<\/p>\n<\/blockquote>\n
      (b)        has   been   removed   from   office   under
\n      section   42<\/a>   and   (six   years)   have   not   elapsed
\n      from the date of such removal, unless he has,  <\/p>\n
      by   an   order   made   by   the   State   Government   in
\n      this   behalf,   been   relieved   earlier   from   the  <\/p>\n
      disqualification   arising   on   account   of   such
\n      removal from office; or<\/p>\n
      (ba)       has   been   found   guilty   of   misconduct
\n      in   the   discharge   of   his   duties,   or   being
\n      guilty   of   any   disgraceful   conduct   while
\n      holding   the   office   of   the   President   or   Vice-\n<\/p><\/blockquote>\n
      President of the Council unless the period of
\n      disqualification   provided   under   Section   55<\/a>   B
\n      has lapsed.<\/p>\n
\n      (c)       is an undischarged insolvent; or\n      (d)       is of unsound mind and stands so \n      declared by a competent Court; or \n\n\n\n\n                                      ::: Downloaded on - 09\/06\/2013 15:41:31 :::<\/span>\n                             ( 15 )\n\n      (e)        has     voluntarily            acquired                the \n\n\n\n\n                                                             \n<\/pre>\n
      citizenship of a foreign state or is under any
\n      acknowledgement of allegiance or adherence to a <\/p>\n
      foreign State; or\n<\/p>\n
      (f)        is a Judge; or\n<\/p>\n
      (g)        is   a   subordinate   officer   or   servant  <\/p>\n
      of Government or any local authority or holds
\n      an   office   of   profit   under   Government   or   any
\n      local authority; or<\/p>\n
      (ga)       if, having held any office under any  <\/p>\n
      Government   or   local   authority   has,   whether
\n      before   or   after   the   commencement   of   the  <\/p>\n
      Maharashtra          Municipalities            and            other
\n      Provisions (Amendment) Act, 1974, (Mah. IV of
\n      1974), been dismissed for misconduct, unless a <\/p>\n
      period   of   five   years   has   elapsed   since   his
\n      dismissal; or<\/p>\n
      (h)        is   in   arrears   (otherwise   than   as   a
\n      trustee) of any sum due by him to the Council <\/p>\n
      after the presentation of bill therefor to him
\n      under section 150<\/a>; or
\n      (ha)       has   not   paid   any   sums   due,   whether
\n      surcharged or charged, under the provisions of <\/p>\n
      the Bombay Local Fund Audit Act, 1930 Bom. XXV
\n      of 1930;\n<\/p>\n
      (i)        save   as   hereinafter   provided,   has
\n      directly   or   indirectly,   by   himself   or   his
\n      partner,   any   share   or   interest   in   any   work
\n      done by order of a Council or in any contract  <\/p>\n
                                     ::: Downloaded on – 09\/06\/2013 15:41:31 :::<\/span>
\n                             ( 16 )<\/p>\n
      with or under or by or on behalf of a Council;\n<\/p>\n
      or\n<\/p>\n
      (j)        save   as   hereinafter   provided,   has  <\/p>\n
      directly   or   indirectly,   by   himself,   or   his
\n      partner   any,   share   or   interest   in   any
\n      transaction   of   loan   of   money   advanced   to,   or  <\/p>\n
      borrowed   from,   any   officer   or   servant   of   the
\n      Council.\n<\/p>\n
      (k)        has more than two children;\n<\/p>\n
      Provided  that   a   person   having   more   than   two
\n      children   on   the   date   of   commencement   of   the  <\/p>\n
      Maharashtra   Municipal   Corporations   and
\n      Municipal   Councils,   Nagar   Panchayats   and
\n      Industrial   Townships   (second   Amendment)   Act<\/a>,  <\/p>\n
      1995 (hereinafter in this clause referred to as
\n      “the date of such commencement”) shall not be <\/p>\n
      disqualified under this clause so long as the
\n      number of children he had on the date of such  <\/p>\n
      commencement does not increase;\n<\/p>\n
      Provided further that a child or more than one
\n      child   born   in   a   Single   delivery   within   the
\n      period   of   one   year   from   the   date   of   such  <\/p>\n
      commencement   shall   not   be   taken   into
\n      consideration         for          the           purpose                of
\n      disqualification mentioned in this clause.
\n      Explanation : *****\n<\/p>\n
      (l) is a member of the State Legislature or of
\n      Parliament;\n<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 15:41:31 :::<\/span><\/p>\n
                                      ( 17 )<\/p>\n
                Provided  that   nothing   in   this   Clause   shall <\/p>\n
                affect   the   membership   of   a  sitting   Councillor
\n                till the expiry of his current term of office  <\/p>\n
                as such Councillor;\n<\/p><\/blockquote>\n
                Provided further that any action, taken by such
\n                councillor   during   the   period   from   the   7th <\/p>\n
                October 2001 till the 20th  October 2001, being
\n                the   date   of   publication   of   the   Maharashtra
\n                Municipal   Corporation   and   Muncipal   Councils  <\/p>\n
                (Amendment) Ordinance, 2001, shall be deemed to <\/p>\n
                have   been   validly   taken   and   shall   not   be
\n                challenged   in   any   court   of   law   only   on   the  <\/p>\n
                ground   that   during   the   said   period   he   had
\n                incurred   disqualification   under   this   clause.”\n<\/p><\/blockquote>\n
    13.         The   comparative   reading   of   section   16<\/a>   and <\/p>\n
    section 44 of the Municipal Councils Act would make it <\/p>\n
    manifestly   clear   that   they   operate   in   distinct   fields.\n<\/p>\n
    It   is   conspicuous   that   section   44<\/a>   deals   with <\/p>\n
    disqualification   of   Councillor   who   is   already   elected <\/p>\n
    and   holding   the   office,   during   midst   of   the   term   of <\/p>\n
    office.         If   he   is   found   to   have   incurred <\/p>\n
    disqualification   during   the   period   of   holding   the <\/p>\n
    office,   then   he   can   be   regarded   as   disqualified   to <\/p>\n
    continue   as  Member   for   the   remainder   of  the  term.     In <\/p>\n
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\n                                     ( 18 )<\/p>\n
    the   present   case,   the   petitioner   could   be   regarded   as <\/p>\n
    disqualified   to   hold   the   office   as   a   Councillor   for <\/p>\n
    further term which had remained after 11th October, 2006.\n<\/p>\n
    It   is   undisputed   that   the   subsequent   elections   were <\/p>\n
    declared in the month of October, 2007 and the results <\/p>\n
    were   declared   on   27th  November,   2007.     The   effect   of <\/p>\n
    disqualification under section 44<\/a> could not be continued <\/p>\n
    for the next term.  The expression “he shall be disabled <\/p>\n
    subject   to   the   provisions   of   sub-section   (3)   from <\/p>\n
    continuing   to   be   a   Councillor   and   his   office   shall  <\/p>\n
    become vacant” as used in section 44<\/a> (1) would mean that <\/p>\n
    the Councillor would be discontinued to remain as such.\n<\/p>\n
    The   disqualification   under   section   16<\/a>   does   imply <\/p>\n
    ineligibility to become a Councillor either by election <\/p>\n
    or   nomination.     In   my   humble   opinion,   disqualification <\/p>\n
    to   contest   the   election   is   one   thing   and   the <\/p>\n
    disqualification   to   continue   as   elected   Councillor   for <\/p>\n
    remaining   term   of   the   office   is   another   thing.     Mr. <\/p>\n
    Salunke invited my attention to section 40<\/a> and section <\/p>\n
    41 of the Municipal Councils Act.  The term of office of <\/p>\n
    the Councillor, no doubt, would be co-terminus with the <\/p>\n
    duration   of   the   Council.     However,   a   disqualified <\/p>\n
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\n                                       ( 19 )<\/p>\n
    Councillor,   against   whom   order   under   section   44<\/a>   is <\/p>\n
    rendered,   cannot   continue   to   remain   in   the   office   and <\/p>\n
    his   office   immediately   shall   become   vacant   as <\/p>\n
    specifically provided vide section 44<\/a> (1).  In this view <\/p>\n
    of   the   matter,   deeming   effect   is   given   to   the   end   of <\/p>\n
    term   of   the   office   of   such   disqualified   Councillor.\n<\/p>\n
    Needless to say, the petitioner’s term could be deemed <\/p>\n
    to   have   come   to   an   end   on   11th  October,   2006   when   the <\/p>\n
    District   Collector   declared   him   disqualified   from <\/p>\n
    holding the office as Councillor.  The election only for <\/p>\n
    ward   No.   17   could   be   ordered   thereafter.     It   appears, <\/p>\n
    however, that general elections were declared lateron in <\/p>\n
    the   month   of   October,   2007   and   simultaneously,   the <\/p>\n
    election of ward No. 17 was also to be held.\n<\/p>\n
    14.        The period of disqualification under section 44<\/a> <\/p>\n
    (1) (e) cannot be extended beyond the remaining term of <\/p>\n
    the   office   as   a   Councillor.     In   “Smt.   Sayali   Sanjay <\/p>\n
    Malwankar v. Chief Officer and others<\/a>” 2004 (2) ALL M R  <\/p>\n
    346,   a   Single   Bench   of   this   Court   held   that   the <\/p>\n
    disqualification   under   section   44<\/a>   (1)   (e)   of   the <\/p>\n
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\n                                      ( 20 )<\/p>\n
    Municipal Councils Act is operative for remaining term.\n<\/p>\n
    It   was   held   that   disqualification   ordered   by   the <\/p>\n
    Collector for five years was illegal.   This Court held <\/p>\n
    that in the absence of a statutory power, the Collector <\/p>\n
    could   not   have   disqualified   the   petitioner,   in   that <\/p>\n
    case,   for   a   further   period   of   five   years.     The <\/p>\n
    petitioner – Smt. Sayali was disqualified for period of <\/p>\n
    five years w.e.f. the date of the Collector’s order on <\/p>\n
    account   of   disqualification   under   section   44<\/a>   (1)   (e).\n<\/p>\n
    This   Court   held   that   the   disqualification   of   such   a <\/p>\n
    Councillor could be only to the extent of the remaining <\/p>\n
    term and not in future. The Court observed that whether <\/p>\n
    petitioner Smt. Sayali can lawfully contest an election <\/p>\n
    in   future,   so   long   as   the   unauthorized   construction <\/p>\n
    continues   to   exist,   was   not   required   to   be   decided   in <\/p>\n
    the said proceedings.\n<\/p>\n
    15.        In the fact situation of the present case, had <\/p>\n
    the   petitioner   continued   to   maintain   the   unauthorized <\/p>\n
    construction,   probably   his   disqualification   to   contest <\/p>\n
    the   election   could   be   the   question   for   determination.\n<\/p>\n
    It   need   not   be   reiterated   that   the   petitioner   was <\/p>\n
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\n                                      ( 21 )<\/p>\n
    acquitted   of   the   criminal   charge   for   alleged   illegal <\/p>\n
    construction\/encroachment.     He   was   also   held   not   a <\/p>\n
    disqualified   Councillor   by   the   appellate   authority.\n<\/p>\n
    Under these circumstances, he could not be regarded as <\/p>\n
    ineligible   to   contest   the   election   for   the   next   term <\/p>\n
    i.e. commencing after the first meeting of the Municipal <\/p>\n
    Council   which   could   be   scheduled   after   27th  November, <\/p>\n
    2007.   For,   if   it   is  held   that   he   was   disqualified   for <\/p>\n
    the   next   term   of   five   (5)   years   too,   then   it   would <\/p>\n
    amount to the disqualification under section 44<\/a> (1) (e) <\/p>\n
    of   the   Municipal   Councils   Act   for   a   period   beyond   the <\/p>\n
    term of earlier office which could be deemed as vacated <\/p>\n
    by him after 11th October, 2006 for the remainder period <\/p>\n
    ending   by   November,  2007.     In   the   absence   of   any   such <\/p>\n
    specific power available to the Collector, the period of <\/p>\n
    such   disqualification   cannot   be   extended   beyond   the <\/p>\n
    earlier term of the office and, therefore, it will have <\/p>\n
    to be said that the petitioner could not be regarded as <\/p>\n
    ineligible   to   contest   the   election   of   the   Municipal <\/p>\n
    Council   at   the   relevant   time   for   the   next   term.     As <\/p>\n
    stated before, even otherwise due to de-clamping of the <\/p>\n
    disqualification   ordered   by   the   Collector,   as   a   result <\/p>\n
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\n                                     ( 22 )<\/p>\n
    of the appellate order, he was legally eligible to file <\/p>\n
    the nomination form to contest the election of Municipal <\/p>\n
    Council   at   the   relevant   time.               This   kind   of <\/p>\n
    retrospective removal of disqualification ought to have <\/p>\n
    been   duly   appreciated   by   the   trial   Court   when   the <\/p>\n
    appellate   order   was   placed   on   record.     For   all   these <\/p>\n
    reasons, it will have to be said that the learned Adhoc <\/p>\n
    District Judge committed patent error while holding that <\/p>\n
    the petitioner incurred stigma and was disqualified from <\/p>\n
    contesting the election.\n<\/p>\n
    16.        The next ground for setting aside the election <\/p>\n
    was that the affidavit filed by the petitioner alongwith <\/p>\n
    the nomination form was defective for two (2) reasons.\n<\/p>\n
    First, one of the paper of the affidavit in the form was <\/p>\n
    kept   blank.     Secondly,   the   affidavit   did   not   bear <\/p>\n
    adhesive   stamps   as   contemplated   under   the   Bombay   Stamp <\/p>\n
    Act, 1958, required for a valid notarial document.   The <\/p>\n
    respondent   No.   2   raised   these   two   grounds   in   the <\/p>\n
    Election   Petition,   claiming   that   the   nomination   form <\/p>\n
    ought   to   have   been   rejected   at   the   time   of   scrutiny <\/p>\n
    itself.     It  may  be   noticed   that  no   such  objection   was <\/p>\n
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\n                                     ( 23 )<\/p>\n
    raised   at   the   time   of   the   scrutiny   of   the   nomination <\/p>\n
    papers.  Clinching question is whether the defects shown <\/p>\n
    to have occurred in the affidavit which was accompanying <\/p>\n
    the   nomination   paper   rendered   nomination   of   the <\/p>\n
    petitioner as invalid.\n<\/p>\n
    17.        Mr. Deshmukh R.S., for the petitioner relied on <\/p>\n
    the judgment in the matter of  Umesh Challiyil vs. K.P<\/a>.\n<\/p>\n
    Rajendran reported in A.I.R. 2008 S.C. 1577  wherein the <\/p>\n
    Apex Court held that the defects should be those which <\/p>\n
    go to the root of the matter. If defects can be cured <\/p>\n
    then the petition cannot be rejected on that ground.  He <\/p>\n
    mainly   relied   on   Head   Note-C   of   this   judgment,   which <\/p>\n
    read as under.\n<\/p>\n
               “(C)   Representation   of   the   Peoples   Act
\n               (43   of   1951).   Ss.   86,   83   –   Election
\n               petition   –   Summary   dismissal   of
\n               defective   petition   –   Defects   should   be  <\/p>\n
               those   which   go   to   roof   of   matter   –\n<\/p><\/blockquote>\n
               Defect   in   complying   with   S.   83<\/a>   –\n<\/p><\/blockquote>\n
               Petition   cannot   be   rejected   under   S.\n<\/p><\/blockquote>\n
               86.”\n<\/p><\/blockquote>\n
                                               ::: Downloaded on – 09\/06\/2013 15:41:31 :::<\/span><\/p>\n
                                      ( 24 )<\/p>\n<\/blockquote>\n
    18.        Mr.   Deshmukh   also   relied   on   certain <\/p>\n
    observations   in   “Tek   Chand   vs.   Dile   Ram<\/a>     reported   in <\/p>\n
    2001 A.I.R. SCW 540″. In this case, the Apex Court held <\/p>\n
    that   mere   allegation   of   wrong   acceptance   of   nomination <\/p>\n
    is not a sufficient reason to set aside the election. It <\/p>\n
    should   be   established   that   such   wrong   acceptance     has <\/p>\n
    materially   affected   result   of   election   of   returned <\/p>\n
    candidate.  Mr. Deshmukh mainly relied on Para 14 and 28 <\/p>\n
    of the said judgment, which read as under.\n<\/p><\/blockquote>\n
               “14.   In   an   election   petition   where   an
\n               election   of   a   returned   candidate   is
\n               impeached under section 100(1)(d)(i) of  <\/p>\n
               the   RPA,   it   is   not   enough   only   to
\n               establish   that   a   nomination   of   a <\/p>\n
               candidate   was   improperly   accepted.   In
\n               addition,   it   has   to   be   further
\n               established   that   such   wrong   acceptance
\n               of   nomination   paper   has   materially  <\/p>\n
               affected the result of the election in
\n               so   far   it   concerned   the   returned
\n               candidate. In this view, in this case,
\n               having regard to facts and contentions,
\n               we   think   it   is   appropriate   to   take   up  <\/p>\n
               the   second   point   set   forth   above   for
\n               consideration first.\n<\/p><\/blockquote>\n
               28. Thus viewed from any angle and even
\n               assuming that nomination paper of Nikka
\n               Ram   was   improperly   accepted   we   hold
\n               that   the   election   of   the   appellant-the <\/p>\n
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\n                                     ( 25 )<\/p>\n
               returned   candidate   in   so   far   it
\n               concerned   him   had   not   been   materially  <\/p>\n
               affected.   The   point   No.   2   is   answered
\n               accordingly.”\n<\/p><\/blockquote>\n
    19.       Mr. Deshmukh would submit that though the Adhoc <\/p>\n
    District   Judge,   Nanded   called   original   papers   from   the <\/p>\n
    Returning   Officer,   Court   failed   to   consider   the <\/p>\n
    affidavit   filed   by   the   petitioner   alongwith   nomination <\/p>\n
    form and material disclosed by him.   He submitted that <\/p>\n
    the learned Adhoc District Judge failed to consider that <\/p>\n
    the affidavit filed by the petitioner was scribed on the <\/p>\n
    non   judicial   stamp   of   Rs.100\/-   and,   therefore,   the <\/p>\n
    petitioner   annexed   blank   form   with   his   affidavit.   He <\/p>\n
    further submitted that the learned Adhoc District Judge <\/p>\n
    failed   to   consider   the   stay   granted   by   the   competent <\/p>\n
    authority   on   08-11-2006   to   the   order   dated   11-10-2006 <\/p>\n
    passed   by   the   Collector,   Nanded.   Mr.   Deshmukh   further <\/p>\n
    submitted that it is well settled principle of law that <\/p>\n
    because   of   formal   defects,   person’s   fundamental   right <\/p>\n
    should not be affected.\n<\/p><\/blockquote>\n
    20.       On   the   other   hand,   Mr.   Salunke   V.D<\/a>.   learned <\/p>\n
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\n                                     ( 26 )<\/p>\n
    counsel appearing on behalf of respondent No. 2, would <\/p>\n
    submit that the judgment dated 01-08-2009 passed by the <\/p>\n
    learned Adhoc District Judge-2  is according to law.  He <\/p>\n
    would   submit   that   in   the   Election   Petition,   respondent <\/p>\n
    No. 2 specifically stated that the petitioner filed his <\/p>\n
    affidavit   alongwith   nomination   form   with   blank   printed <\/p>\n
    form and same was not validly sworn in before the Notary <\/p>\n
    because   Notary   stamp   which   is   necessary   for   compliance <\/p>\n
    and completion of verification was not affixed thereon.\n<\/p>\n
    In support of his contentions, Mr. Salunke relied on the <\/p>\n
    following Sections of Bombay Stamp Act, 1958 which are <\/p>\n
    reproduced hereunder.\n<\/p>\n
                    “2(h)      “duly   stamped”   as   applied
\n               to   an   instrument   means   that   the
\n               instrument   bears   an   adhesive   or  <\/p>\n
               impressed   stamp   of   not   less   than   the
\n               proper   amount   and   that   such   stamp   has
\n               been affixed or used in accordance with
\n               the law for the time being in force in
\n               the State.”\n<\/p>\n
                    “13. Instruments   stamped   with
\n               impressed   stamps   how   to   be   written.\n<\/p>\n
               Every   instrument   for   which   sheet   of
\n               paper   stamped   with   impressed   stamp   is
\n               used   shall   be   written   in   such   manner
\n               that the writing may appear on the face
\n               and,   if   required,   on   the   reverse   of
\n               such   sheet   so   that   it   cannot   be   used <\/p>\n
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\n                             ( 27 )<\/p>\n
      for or applied to any other instrument.\n<\/p>\n
            Explanation.I-   Where   two   or   more
\n      sheets of papers stamped with impressed  <\/p>\n
      stamps   are   used   to   make   up   the   amount
\n      of   duty   chargeable   in   respect   of   any
\n      instrument,   either   a   portion   of   such
\n      instrument   shall   be   written   on   each <\/p>\n
      sheet so used, or the sheet on which no
\n      such portion is written shall be signed
\n      by   the   executant   or   one   of   the
\n      executants,   with   an   endorsement
\n      indicating that the additional sheet is  <\/p>\n
      attached   to   the   sheet   on     which   the
\n      instrument is written.\n<\/p>\n
            Explanation.II-       Where   the   sheet
\n      or   sheets   bearing   impressed   stamps   is  <\/p>\n
      or   are   insufficient   to   admit   of   the
\n      entire   instrument   being   written
\n      thereon,   so   much   plain   paper   may   be
\n      subjoined   thereto   as   may   be   necessary
\n      for   completing   the   writing   of   such  <\/p>\n
      instrument, provided a substantial part
\n      of   the   instrument   is   written   on   the  <\/p>\n
      sheet which bears the stamp before any
\n      part   is   written   on   the   plan   paper   so
\n      subjoined; and such plain paper may or
\n      may not be signed by the executant but  <\/p>\n
      where it is not so signed it shall not
\n      render   the   instrument   not   duly
\n      stamped.”\n<\/p>\n
            “Article-42.<\/a>   Stamps   to   be   used   –\n<\/p>\n
      Adhesive   Stamp   paper   under   Section   11<\/a>
\n      read with Rule 6.\n<\/p>\n
            NOTARIAL   ACT,   that   is   to   say,   any
\n      instrument,   endorsement,   note,
\n      attestation,   certificate   or   entry   not
\n      being   a   Protest   (Article   49<\/a>)   executed
\n      by   a   Notary   Public   in   the   performance
\n      of the duties of his office, or by any
\n      other   person   lawfully   acting   as   a  <\/p>\n
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\n                                       ( 28 )<\/p>\n
               Notary Public.”\n<\/p>\n
    21.        Mr. Salunke contended that as per Bombay Stamp <\/p>\n
    Act,   1958,   affidavit   should   bear   an   adhesive   or <\/p>\n
    impressed stamp of not less than  the proper amount and <\/p>\n
    that such stamp has been affixed or used in accordance <\/p>\n
    with   the   law   for   the   time   in   force   in   the   State.   He <\/p>\n
    submitted that in the present case, it is crystal clear <\/p>\n
    from   the   record   that   the   affidavit   filed   by   the <\/p>\n
    petitioner   was   without   any   stamp   and   therefore,   same <\/p>\n
    cannot be considered according to law.\n<\/p>\n
    22.        Mr.   Salunke   further   contended   that   State <\/p>\n
    Election   Commission,   Maharashtra   issued   order   dated <\/p>\n
    03-07-2002   explaining   the   procedure   for   filing <\/p>\n
    nomination forms.  He mainly relied on Para 8 (1,2,3 and <\/p>\n
    4), which read as under.\n<\/p>\n
                     “8. Now, therefore, in exercise of
\n               the   powers   conferred   by   Article   243-K<\/a>
\n               and 243-ZA<\/a> of the Constitution of India
\n               read with sub-section (4) of section 9A
\n               of   the   Maharashtra   Zilla   Parishads   and
\n               Panchayat Samitis Act, 1962 (Mah. V of
\n               1962),   sub-section   (4)   of   section   10A
\n               of   the   Bombay   Village   Panchayats   Act, <\/p>\n
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\n                            ( 29 )<\/p>\n
      1958 (Bom III of 1959) sub-section (4)
\n      of section 18A of the Mumbai Municipal  <\/p>\n
      Corporation Act (Bom III of 1888), sub-\n<\/p><\/blockquote>\n
      section (4) of section 14 of the Bombay  <\/p>\n
      Provincial   Municipal   Corporations   Act,
\n      1949 (Bom LIX of 1949, sub-section (4)
\n      of   section   9B   of   the   City   of   Nagpur
\n      Corporation Act, 1948 (C.P. Berar II of  <\/p>\n
      1950),   sub-section   (4)   of   section   10A
\n      of   the   Maharashtra   Municipal   Councils,
\n      Nagar   Panchayats   and   Industrial
\n      Townships   Act,   1965   and   of   all   other
\n      powers enabling it in this behalf, the  <\/p>\n
      State Election Commission, Maharashtra,
\n      hereby directs as follows:-\n<\/p>\n
            1)   Every candidate at the time of
\n      filing   his   nomination   paper   for   any <\/p>\n
      election or bye-election for electing a
\n      Member   or   Members   of   any   Panchayat   or
\n      Municipality,   shall   furnish   full   and
\n      complete   information   in   regard   to   all
\n      the   five   matters,   in   affidavit   in   the  <\/p>\n
      format   annexed   hereto   as   Annexure-I   to
\n      this Order:\n<\/p>\n
           Provided that having regard to the
\n      difficulties   in   swearing   an   affidavit
\n      in a village, a contesting candidate at  <\/p>\n
      the   election   to   a   Village   Panchayat
\n      under the Bombay Village Pachayats Act,
\n      1959   shall,   instead   of   filing   an
\n      Affidavit,   file   before   the   Returning
\n      Officer   a   declaration   in   the   format <\/p>\n
      annexed   hereto   as   Annexure-II   to   this
\n      Order.\n<\/p>\n
      2)   The   said   affidavit   by   each
\n      candidate shall be duly sworn before a
\n      Magistrate   of   the   First   Class   or   a
\n      Notary   Public   or   a   Commissioner   of
\n      Oaths   appointed   by   the   High   Court   of
\n      the   State   or   before   an   officer  <\/p>\n
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\n                             ( 30 )<\/p>\n
      competent   for   swearing   an   affidavit
\n      which includes Sub-Divisional (Class I)  <\/p>\n
      and Tahasildar (Class I).\n<\/p>\n
      3)   Non furnishing of the affidavit or
\n      declaration   as   the   case   may   be   by   any
\n      candidate   shall   be   considered   to   be
\n      violation   of   this   order   and   the <\/p>\n
      nomination   of   the   candidate   concerned
\n      shall   be   liable   to   rejection   by   the
\n      returning   officer   at   the   time   of
\n      scrutiny   of   nomination   for   each   non-
\n      furnishing of the affidavit.\n<\/p>\n
      4)    Furnishing   of   any   wrong   or <\/p>\n
      incomplete   information   of   suppression
\n      of   any   material   information   by   any
\n      candidate in or from the said affidavit  <\/p>\n
      or   declaration   on   as   the   case   may   be,
\n      may also result in the rejection of his
\n      nomination   paper   where   such   wrong   or
\n      incomplete   information   or   suppression
\n      of   material   information   is   considered  <\/p>\n
      by the returning officer to be a defect
\n      of   substantial   character,   apart   from <\/p>\n
      inviting   penal   consequences   under   the
\n      Indian   Penal   Code<\/a>   for   furnishing   wrong
\n      information   to   a   public   servant   or
\n      suppression   of   material   facts   before <\/p>\n
      him.\n<\/p>\n
            Provided that only such information
\n      shall   be   considered   to   be   wrong   or
\n      incomplete   or   amounting   to   suppression  <\/p>\n
      of   material   information   as   is   capable
\n      of   easy   verification   by   the   returning
\n      officer   by   reference   to   documentary
\n      proof adduced before him in the summary
\n      inquiry conducted by him at the time of
\n      scrutiny   of   nominations   and   the
\n      information   so   verified   shall   be   taken
\n      into   account   by   him   for   further
\n      consideration   of   the   question   whether  <\/p>\n
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\n                                       ( 31 )<\/p>\n
               the   same   is   a   defect   of   a   substantial
\n               character.”\n<\/p>\n
    23.        On   careful   consideration   of   the   rival <\/p>\n
    submissions   and   also   on   close   reading   of   copy   of   the <\/p>\n
    affidavit   (Exh-G)   placed   on   record,   it   is   amply   clear <\/p>\n
    that   the   learned   Adhoc   District   Judge   committed   patent <\/p>\n
    error   while   holding   that   the   affidavit   is   incomplete <\/p>\n
    because   one   of   the   printed   page   of   the   format   i.e. <\/p>\n
    Annexure-I   was   kept   blank.     It   appears   that   the <\/p>\n
    Annexure-I of the form of affidavit was printed on the <\/p>\n
    stamp   paper   of   Rs.   100\/-   and,   therefore,   the   same <\/p>\n
    Annexure-I which was also in another form was not filled <\/p>\n
    up.  It is not at all a case wherein the Annexure-I was <\/p>\n
    not   filled   up   by   the   petitioner.     He   had   given   the <\/p>\n
    necessary   information   as   provided   in   Annexure-I   in   the <\/p>\n
    affidavit.   Since   the   information   was   given   in   printed <\/p>\n
    form   below   the   stamp   paper   of   Rs.   100\/-,   yet,   another <\/p>\n
    form   of   Annexure-I,   which   was   alongwith   the   affidavit, <\/p>\n
    was   not   filled   up   by   him.     That   would   have   been   only <\/p>\n
    repetition   of   the   same   information   which   was   already <\/p>\n
    filled   up   in   Annexure-I   below   the   stamp   paper   of   Rs.\n<\/p>\n
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                                     ( 32 )<\/p>\n
    100\/-.   Obviously, there is no basis to infer that the <\/p>\n
    affidavit   filed   in   form   Annexure-I   was   incomplete   and, <\/p>\n
    therefore, the nomination could be regarded as invalid.\n<\/p>\n
    In   fact,   it   appears   that   the   affidavit   filed   by   the <\/p>\n
    petitioner   was   in   the   required   formats   alongwith   the <\/p>\n
    relevant   Annexures.   The   affidavit   was   in   keeping   with <\/p>\n
    the   Annexures   as   provided   for   in   terms   of   the   order <\/p>\n
    dated   3rd  July,   2002,   issued   by   the   State   Election <\/p>\n
    Commission,   Maharashtra   (Exh-R-1).     There   appears <\/p>\n
    factual inaccuracy committed by the Adhoc District Judge <\/p>\n
    while holding that the nomination form was not complete <\/p>\n
    due to non-filling of page No. 57 and, therefore, it was <\/p>\n
    incomplete   affidavit.     The   petitioner   was   not   required <\/p>\n
    to repeat the exercise of filling up the Annexure-I when <\/p>\n
    he had already filled up the information on earlier page <\/p>\n
    below   the   non-judicial   stamp   of   Rs.   100\/-.     The <\/p>\n
    inference drawn by the learned Adhoc District Judge is <\/p>\n
    rather strange and so also the argument advanced by the <\/p>\n
    learned counsel for the respondent No. 2 is rather far-\n<\/p>\n
    fetched.\n<\/p>\n
    24.        Now, it remains to be seen whether the defect <\/p>\n
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\n                                      ( 33 )<\/p>\n
    in the affidavit due to non-affixing of adhesive stamps <\/p>\n
    at the place of verification by the Notary Public could <\/p>\n
    be of substantial nature, so much so that the nomination <\/p>\n
    paper   itself   could   be   vitiated   on   such   ground.    It   is <\/p>\n
    true that the provision of the section 2<\/a> (h) read with <\/p>\n
    section 11<\/a> (b) and Schedule-I Article 42<\/a> of the Bombay <\/p>\n
    Stamp Act, 1958 would show that the notarized document <\/p>\n
    ought   to   be   affixed   with   adhesive   stamps   of   Rs.   25\/-.\n<\/p>\n
    It is true that such adhesive stamps were not affixed to <\/p>\n
    the   affidavit   where   the   Notary   Public   endorsed   the <\/p>\n
    verification with the signature and stamp of the Notary <\/p>\n
    Public.     The   defect,it   is   argued,   would   render   such <\/p>\n
    affidavit   inadmissible   and   it   would   be   simply   a   waste <\/p>\n
    paper.\n<\/p>\n
    25.            The observations of learned Single Judge in <\/p>\n
    “Kashi   Prasad   Saksena   vs.   State   Government   of   U.P<\/a>.\n<\/p>\n
    Lucknow” (supra), with due respect, can be used only to <\/p>\n
    the extent of saying that the endorsement by the Notary <\/p>\n
    Public on affidavit falls within provision of Article 42<\/a> <\/p>\n
    of   the   Bombay   Stamp   Act   and   requires   Notarial   stamp.\n<\/p>\n
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                                      ( 34 )<\/p>\n
    Still,   however,  it   is   too   much   to   say   that   it   becomes <\/p>\n
    waste   paper   due   to   such   technical   flaw.     Reliance   on <\/p>\n
    observations   in   “M\/s.   Canwood   Agencies   Pvt.   Ltd.   vs. <\/p>\n
    Namdeo   Pandurang   Panchal   and   another<\/a>”   (supra),   also   is <\/p>\n
    misplaced.     The   instrument   which   is   compulsorily <\/p>\n
    required   to   be   registered,   may   not   be   used   to   prove <\/p>\n
    origin   or   extinguishment   of   the   right   to   an   immovable <\/p>\n
    property.     The   affidavit   does   not   create   any   right   as <\/p>\n
    such.  It is argued that such affidavit, which does not <\/p>\n
    bear   adhesive   stamps,   cannot   be   read   in   evidence.     In <\/p>\n
    fact,   the   expression   “affidavit”   falls   outside   the <\/p>\n
    definition of the word “evidence” and, therefore, there <\/p>\n
    is   no   question   of   reading   the   same   in   evidence.     The <\/p>\n
    word “evidence” as used in section 3<\/a> of the Evidence Act <\/p>\n
    does not include the expression “affidavit”.   In “Sudha <\/p>\n
    Devi vs. M.P. Narayanan<\/a>” (AIR 1988 S.C. 1381), the Apex <\/p>\n
    Court   held   that   affidavits   are   no   evidence   under   the <\/p>\n
    Evidence Act<\/a>. They can be used as evidence only if the <\/p>\n
    Court passes an order for sufficient reasons for proving <\/p>\n
    a fact by affidavit.\n<\/p>\n
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                                        ( 35 )<\/p>\n
    26.         So also, in “Umesh Challiyil v. K.P. Rajendran<\/a>”\n<\/p>\n
    (AIR   2008   S.C.   1577),   the   Apex   Court   held   that   minor <\/p>\n
    defect in the affidavit filed in support of allegation <\/p>\n
    of corrupt practice could not be fatal to the petition.\n<\/p>\n
    The minor defect in the affirmation, it was held, di d <\/p>\n
    not   go   to   the   root   of   the   matter   so   as   to   render   the <\/p>\n
    entire   election   petition   not   properly   constituted <\/p>\n
    entailing the dismissal of the same.  In fact, the minor <\/p>\n
    defect   in   swearing   of   the   affidavit   could   not   vitiate <\/p>\n
    the   nomination   paper   itself.     It   is   too   technical <\/p>\n
    approach   to   say   that   the   non-affixing   of   the   adhesive <\/p>\n
    stamps at the place of verification by the Notary Public <\/p>\n
    was substantial defect and, therefore, nomination of the <\/p>\n
    petitioner was liable to be rejected.\n<\/p>\n
    27.         In   “Tek   Chand   vs.   Dile   Ram<\/a>”   2001   A.I.R.   SCW  <\/p>\n
    540, the Apex Court held that mere allegation of wrong <\/p>\n
    acceptance   of   nomination   paper   would   not   be   sufficient <\/p>\n
    to declare the election as null and void.   It is held <\/p>\n
    that such wrong acceptance of the nomination paper must <\/p>\n
    be   proved   to   have   materially   affected   result   of   the <\/p>\n
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\n                                      ( 36 )<\/p>\n
    election   of   returned   candidate.     The   minor   technical <\/p>\n
    defect alleged by the respondent No. 2 had nothing to do <\/p>\n
    with the result of the petitioner’s election.  I mean to <\/p>\n
    say,   the   so   called   defect   could   not   have   caused   any <\/p>\n
    change in the voting pattern and the petitioner was not <\/p>\n
    likely   to   gain   more   votes   due   to   such   defect   in   the <\/p>\n
    verification   of   the   said   affidavit.     Needless   to   say, <\/p>\n
    the   respondent   No.   2   attempted   to   make   out   a   mountain <\/p>\n
    out of the mole-hill.  The minor defect in the affidavit <\/p>\n
    regarding non-affixing of the adhesive stamps could not <\/p>\n
    be blown out of proportion so as to nullify the election <\/p>\n
    of the petitioner. The reliance on observations in “Regu <\/p>\n
    Mahesh   alias   Regu   Maheshwar   Rao   vs.   Rajendra   Pratap  <\/p>\n
    Bhanj Dev & another<\/a>” 2004 (5) ALL MR (S.C.) 332 is also <\/p>\n
    misplaced.       The   counsel   for   the   respondent   No.   2 <\/p>\n
    submits that though opportunity was available, yet, the <\/p>\n
    petitioner exhibited casual approach and did not remove <\/p>\n
    the defect and hence, the affidavit filed alongwith the <\/p>\n
    nomination   paper   was   illegal   and   could   nullify   the <\/p>\n
    eligibility of the petitioner to contest the election on <\/p>\n
    basis of such invalid nomination. The authority referred <\/p>\n
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\n                                     ( 37 )<\/p>\n
    above   deals   with   verification   of   the   pleadings   in   the <\/p>\n
    Election   Petition.   The   verification   of   pleadings   of <\/p>\n
    Election   Petition   is   quite   different   thing   than   proper <\/p>\n
    verification of the affidavit accompanying a nomination <\/p>\n
    paper.     Moreover,   verification   of   pleadings   in   a <\/p>\n
    particular form as contemplated under the provisions of <\/p>\n
    the Representation of the Peoples Act, 1950 may affect <\/p>\n
    maintainability of the Election Petition due to specific <\/p>\n
    provision   which   requires   presentation   of   the   Election <\/p>\n
    Petition   under   section   80   (Chapter-II   Part-VI)   of   the <\/p>\n
    Representation of the Peoples Act, 1950.   The technical <\/p>\n
    defect in the affidavit could not have been cured after <\/p>\n
    the election was over.  Nor it did materially affect the <\/p>\n
    election results.\n<\/p>\n
    28.        The   cumulative   effect   of   the   foregoing <\/p>\n
    discussion is that the petitioner’s nomination could not <\/p>\n
    be invalidated on account of the so called minor defects <\/p>\n
    pointed out by the respondent No. 2.  The learned Adhoc <\/p>\n
    District Judge committed patent error while holding that <\/p>\n
    nomination   of   the   petitioner   was   null   and   void.   The <\/p>\n
    approach of the learned Adhoc District Judge appears to <\/p>\n
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\n                                     ( 38 )<\/p>\n
    be   hyper   technical   and   against   the   spirit   of   the <\/p>\n
    guidelines   issued   by   the   Election   Commission   for   the <\/p>\n
    purpose   of   obtaining   a   bonafide   affidavit   from   the <\/p>\n
    candidates for election.\n<\/p>\n
    29.        The   last   question   which   remains   to   be <\/p>\n
    determined   is   whether   the   respondent   No.2     could   be <\/p>\n
    declared   as   an   elected   candidate.     Mr.   Salunke   V.D<\/a>.\n<\/p>\n
    submits   that   in   view   of   specific   provision   as <\/p>\n
    contemplated under section 21<\/a> (10), the respondent No. 2 <\/p>\n
    could   be   declared   as   duly   elected   candidate   when   the <\/p>\n
    election of the petitioner was liable to be quashed.  He <\/p>\n
    contended   that   since   the   respondent   No.   2   had   secured <\/p>\n
    the   second   highest   votes,   he   could   be   declared   as <\/p>\n
    elected   candidate   in   view   of   section   21<\/a>   (10)   (a).\n<\/p>\n
    Section 21<\/a> (10) reads as follows :\n<\/p>\n
               “21. Disputes in respect of election nomination  <\/p>\n
               of Councillors.<\/p><\/blockquote>\n
               (1) *****<\/p>\n
               (2) *****<\/p>\n
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\n                           ( 39 )<\/p>\n
      (3) *****<\/p>\n
      (4) *****<\/p>\n
      (5) *****<\/p>\n
      (6) *****<\/p>\n
      (7) *****<\/p>\n
      (8) *****<\/p>\n
      (9) *****<\/p>\n
      (10) If   the   petitioner   has,   in   addition   to <\/p>\n
      calling   in   question   the   election   of   the <\/p>\n
      returned candidate, claimed a declaration that  <\/p>\n
      he   himself   or   any   other   candidate   has   been  <\/p>\n
      duly elected and the Judge is satisfied that –\n<\/p>\n
      (a) the   petitioner   or   such   other   candidate  <\/p>\n
      received   sufficient   number   of   valid   votes   to <\/p>\n
      have been elected; or<\/p>\n
      (b) but for the votes obtained by the returned  <\/p>\n
      candidate   by   corrupt   practices   the   petitioner <\/p>\n
      or such other candidate would have obtained a <\/p>\n
      sufficient number of valid votes to have been <\/p>\n
      elected;\n<\/p>\n
      the Judge may, after declaring the election of <\/p>\n
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\n                                 ( 40 )<\/p>\n
          the   returned   candidate   void,   declare   the  <\/p>\n
          petitioner   or   such   other   candidate   to   have <\/p>\n
          been duly elected;\n<\/p>\n
          Provided that –\n<\/p>\n
          (i) for   the   purpose   of   such   computation,   no <\/p>\n
          vote   shall   be   reckoned   as   valid   if   the   Judge  <\/p>\n
          finds   that   any   corrupt   practice   was   committed  <\/p>\n
          by   any   person   known   or   unknown   in   giving   or  <\/p>\n
          obtaining it;\n<\/p>\n
          (ii) after such computation, if any equality of <\/p>\n
          vote is found to exist between any candidates  <\/p>\n
          and the addition of one vote would entitle any  <\/p>\n
          of the candidates to be declared elected, one  <\/p>\n
          additional   vote   shall   be   added   to   the   total  <\/p>\n
          number   of   valid   votes   found   to   have   been  <\/p>\n
          recorded   in   favour   of   the   candidate,   or <\/p>\n
          candidates, as the case may be, selected by lot  <\/p>\n
          drawn   in   the   presence   of   the   Judge   in   such  <\/p>\n
          manner as he may determine.”\n<\/p>\n
    30.   It is difficult to countenance the contentions <\/p>\n
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\n                                      ( 41 )<\/p>\n
    of Mr. Salunke V.D<\/a>. in the context of interpretation of <\/p>\n
    section 21<\/a> (10). The comprehensive reading of section 21<\/a> <\/p>\n
    (10)   would   make   it   manifestly   clear   that   such <\/p>\n
    declaration   that   any   other   candidate   has   been   duly <\/p>\n
    elected can be granted only when it is found that as a <\/p>\n
    result   of   recrimination\/re-counting,   such   other <\/p>\n
    candidate had received sufficient number of valid votes <\/p>\n
    which   could   be   enough   to   declare   him   elected,   or   the <\/p>\n
    elected candidate had received votes obtained by corrupt <\/p>\n
    practice which could be eliminated and, therefore, such <\/p>\n
    other   candidate   could   be   said   to   have   received <\/p>\n
    sufficient   number   of   valid   votes   to   declare   him   as <\/p>\n
    elected one.  Neither of such contingency existed in the <\/p>\n
    present case.\n<\/p>\n
    31.        The   learned   Adhoc   District   Judge-2   did   not <\/p>\n
    ascribe any tangible reason as to why the respondent No. <\/p>\n
    2 was liable to be declared as an elected candidate.  He <\/p>\n
    simply   noticed   that   the   respondent   No.   2   had   secured <\/p>\n
    second highest votes. This is the only reason as to why <\/p>\n
    the respondent No. 2 was declared as elected candidate <\/p>\n
    as   a   fall-out   of   the   declaration   that   election   of   the <\/p>\n
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\n                                     ( 42 )<\/p>\n
    petitioner   was   null   and   void.   This   approach   of   the <\/p>\n
    learned   Adhoc   District   Judge-2   is   improper   and   against <\/p>\n
    the settled principles of law.   The petitioner and the <\/p>\n
    respondent   No.   2   were   not   the   only   candidates   in   the <\/p>\n
    fray.     The   factual   position   of   votes   secured   by   the <\/p>\n
    candidates was as follows :<\/p>\n
\n\n\n\n\n                                    \n    Sr.  Name of the candidate\n                        ig                   Votes secured\n    No.\n    ---  ---------------------------         -------------\n                      \n     1    Alne Arun Laxmanrao (Respdt.-2)                         415<\/span>\n     2    Kadam Ashatai Udhavrao                                   48<\/span>\n     3    Donpeliwar Laxmipati Bapurao (Petnr.)                   354<\/span>\n      \n\n     4    Patil Ashok Gomaji                                       10<\/span>\n     5    Maske Suresh Dattatraya                                  02<\/span>\n   \n\n\n\n     6    Sunkalwad Maroti Kanba                                   10<\/span>\n\n\n\n\n\n                            \n\n<\/pre>\n
    32.        A   Division   Bench   of   this   Court   in   “Anandrao <\/p>\n
    Tohluji   Bagade   v.   Namdeorao   Lalwanji   Sontakkey   and  <\/p>\n
    others<\/a>” (1978 Mh.L.J. 371), had an occasion to consider <\/p>\n
    scope   of   section   21<\/a>   (10)   of   the   Maharashtra <\/p>\n
    Municipalities   Act,   1965.   It   is   observed   that   where <\/p>\n
    there   are   more   than   two   (2)   candidates,   the   votes <\/p>\n
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\n                                     ( 43 )<\/p>\n
    secured by the disqualified candidates cannot be treated <\/p>\n
    as   thrown   away   and   question   of   notice   to   voters   may <\/p>\n
    assume significance.  For, the voters may not, if aware <\/p>\n
    of   disqualification,   have   voted   for   the   returned <\/p>\n
    candidate.     In   “Kadam   Rupsing   Bhivji   v.   Returning <\/p>\n
    Officer   Municipal   Council,   Ahmednagar   and   others<\/a>”   1998 <\/p>\n
    (3) Mh.L.J. 293, a Single Bench of this Court held that <\/p>\n
    where   there   were   large   number   of   candidates,   it   was <\/p>\n
    immaterial   to   consider   as   to   which   defeated   candidate <\/p>\n
    had   pulled   what   number   of   votes.     The   learned   Single <\/p>\n
    Judge held that the order declaring the respondent No. 2 <\/p>\n
    as elected, was not legally sustainable because it was <\/p>\n
    difficult   to   anticipate   as   to   who   could   have   secured <\/p>\n
    more   votes,   had   the   votes   received   by   the   elected <\/p>\n
    candidate   been   distributed   amongst   them   due   to   the <\/p>\n
    further   choices   available   to   the   voters.     Mr.   Salunke <\/p>\n
    v.D<\/a>.   would   submit   that   the   view   taken   by   the   learned <\/p>\n
    Single   Judge   in   above   referred   case   requires   re-\n<\/p>\n
    consideration and is not in keeping with purport of sub-\n<\/p>\n
    section   (10)   of   section   21   of   the   Municipal   Councils <\/p>\n
    Act.   I do not agree.   The trial Court is not supposed <\/p>\n
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\n                                     ( 44 )<\/p>\n
    to   speculate   the   pattern   of   votes   in   respect   of   the <\/p>\n
    votes which were gained by the elected candidate if by <\/p>\n
    deductive method, the only other candidate in the fray <\/p>\n
    cannot be said to have received sufficiently large votes <\/p>\n
    to declare him as elected one.   For example, if “A” is <\/p>\n
    the   elected   candidate   whose   election   is   set   aside   and <\/p>\n
    only “B” is the another candidate in the fray and that <\/p>\n
    after   all   the   invalid   votes   received   by   “A”   if   are <\/p>\n
    counted and deducted from the number of votes received <\/p>\n
    by him, it is found that “B” had secured highest votes, <\/p>\n
    then   “B”   may   be   declared   as   elected   candidate   as   a <\/p>\n
    result   of   such   process.     The   provision   of   section   21<\/a> <\/p>\n
    (10) is not intended to fill up the Councillor’s post by <\/p>\n
    declaring unsuccessful candidate as elected one, in the <\/p>\n
    ordinary   course,   though   he   did   not   receive   required <\/p>\n
    number of votes.  In a democratic set-up, one who could <\/p>\n
    not gain sufficient confidence of the voters cannot be <\/p>\n
    declared   as   an   elected   candidate.     Hence,   the   learned <\/p>\n
    Adhoc   District   Judge-2   committed   patent   error   while <\/p>\n
    declaring the respondent No. 2 as the elected candidate.\n<\/p>\n
    33.        Taking   stock   of   the   foregoing   reasons,   it   is <\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 15:41:32 :::<\/span>
\n                                    ( 45 )<\/p>\n
    explicit   that   the   petitioner   could   not   be   disqualified <\/p>\n
    as   a   candidate   for   the   Municipal   Election.     Nor   his <\/p>\n
    nomination   suffered   from   any   substantial   defect   due   to <\/p>\n
    the non-affixing of proper adhesive stamps at the place <\/p>\n
    of verification by the Notary Public or keeping the same <\/p>\n
    Annexure-I   blank   though   one   of   said   Annexure-I   was <\/p>\n
    filled up by him.   It follows that the election of the <\/p>\n
    petitioner could not be set aside.   Nor the respondent <\/p>\n
    No. 2 could be declared as an elected candidate.\n<\/p>\n
    34.       In   the   result,   the   petition   is   allowed.     The <\/p>\n
    impugned   judgement   and   order   is   set   aside.   Rule   made <\/p>\n
    absolute accordingly.  No costs.\n<\/p>\n
                                                 [ V.R. KINGAONKAR ]
\n                                                        JUDGE  <\/p>\n
    NPJ\/wp5805.09<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:41:32 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Arun vs Returning Officer\/Sub … on 9 March, 2010 Bench: V.R. Kingaonkar (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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-256386","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nArun vs Returning Officer\/Sub ... on 9 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/arun-vs-returning-officersub-on-9-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Arun vs Returning Officer\/Sub ... on 9 March, 2010 - 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