{"id":57091,"date":"2008-09-16T00:00:00","date_gmt":"2008-09-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/uttamrao-shivdas-jankar-vs-ranjitsinh-vijaysinh-on-16-september-2008"},"modified":"2016-07-21T13:52:30","modified_gmt":"2016-07-21T08:22:30","slug":"uttamrao-shivdas-jankar-vs-ranjitsinh-vijaysinh-on-16-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/uttamrao-shivdas-jankar-vs-ranjitsinh-vijaysinh-on-16-september-2008","title":{"rendered":"Uttamrao Shivdas Jankar vs Ranjitsinh Vijaysinh … on 16 September, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Uttamrao Shivdas Jankar vs Ranjitsinh Vijaysinh … on 16 September, 2008<\/div>\n
Bench: S.J. Vazifdar<\/div>\n
                                          1\n\n          IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                        \n              ORDINARY ORIGINAL CIVIL  JURISDICTION\n\n\n\n\n                                                                \n                   ELECTION PETITION NO.1 OF 2004\n\n\n\n\n                                                               \n    Uttamrao Shivdas Jankar                         ..Petitioner.\n\n    Vs.\n\n\n\n\n                                                \n    Ranjitsinh Vijaysinh Mohite-Patil               ..Respondent.\n                              \n    Mr. Pramod N. Patil for the Petitioner.\n                             \n    Mr. C. J. Sawant, Senior Advocate with Mr. V. P. Sawant for the\n    Respondent.\n                         CORAM        \n                                                       \n                                                         :\n                                                             S.J. VAZIFDAR, J.\n<\/pre>\n
                         DATE OF RESERVING<\/p>\n
                         THE JUDGMENT
\n                                                   :       th
\n                                                        26    AUGUST, 2008.\n<\/p>\n
                         DATE OF PRONOUNCING
\n                         THE JUDGMENT
\n                                                    :\n<\/p>\n
                                                        16th SEPTEMBER, 2008 <\/p>\n
    ORAL JUDGMENT :\n<\/p>\n
              The Petitioner seeks a declaration that his nomination<\/p>\n
    for the election to the Local Authorities Constituency, Solapur of<\/p>\n
    the Maharashtra Legislative Council, Biennial Election, 2003 was<\/p>\n
    improperly rejected by the Returning Officer and for a declaration<\/p>\n
    that the election of the Respondent as Member of the Maharashtra<\/p>\n
    Legislative Council from the Local Authorities Constituency,<\/p>\n
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\n                                         2<\/span><\/p>\n
    Solapur, of the Maharashtra Legislative Council, Biennial Election,<\/p>\n
    2003 is void, and for an order setting aside the said election.\n<\/p>\n
    2.        By a notification dated 7.11.2003 the Returning Officer<\/p>\n
    declared the election programme for the said election.                  The<\/p>\n
    nomination papers were to be delivered by the candidate to the<\/p>\n
    Collector and the Returning Officer or to the Deputy Collector and<\/p>\n
    Assistant Returning Officer at the Collector’s office between 11.00<\/p>\n
    a.m. and 3.00 p.m. on any day not later than 14.11.2003. The<\/p>\n
    nomination papers were to be taken up for scrutiny at the<\/p>\n
    Collector’s office on 15.11.2003 at 11.00 a.m. Notice of withdrawal<\/p>\n
    of candidatures were to be delivered before 3.00 p.m. on<\/p>\n
    17.11.2003.    The poll, if any, was to be taken on 1.12.2003<\/p>\n
    between 8.00 a.m. and 4.00 p.m.<\/p>\n
    The Petitioner’
\n                  s Case <\/p>\n
    3.        On 14.11.2003 the Petitioner presented his nomination<\/p>\n
    paper in the prescribed form to the Returning Officer within the<\/p>\n
    stipulated time for the purpose of contesting the said election. The<\/p>\n
    Petitioner was an independent candidate – he was not sponsored<\/p>\n
    or set up by any political party.\n<\/p>\n
              The Petitioner presented his nomination paper signed by<\/p>\n
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\n                                      3<\/span><\/p>\n
    himself and by ten proposers who were electors of the said<\/p>\n
    constituency for the said election. There is no dispute regarding<\/p>\n
    the authenticity of the form except that the signatures of two of the<\/p>\n
    said ten proposers, one Sharif Mohammad Badshah Sutar and<\/p>\n
    Sau. Jaymala Purnanand Mhetre thereon were forged. According<\/p>\n
    to the Petitioner, the said ten proposers had signed the nomination<\/p>\n
    papers in his presence and in the presence of each other and in<\/p>\n
    the presence of other persons including one Ratan Govind Pandit.\n<\/p>\n
    The said Ratan Govind Pandit is the brother of Sau. Jaymala<\/p>\n
    Purnanand Mhetre. There is no dispute that the Petitioner had<\/p>\n
    deposited alongwith the nomination paper, the requisite amount.\n<\/p>\n
    Nor is there any dispute that the Petitioner was qualified to contest<\/p>\n
    and to stand for the said election and that the said ten proposers<\/p>\n
    including the two alleged proposers were members of the<\/p>\n
    Mangalwedha Municipal Council and as such, were and are the<\/p>\n
    electors of the said constituency for the said election. Apart from<\/p>\n
    the Petitioner and the said Respondent two other persons viz. one<\/p>\n
    Subhash Rajaram Patil and one Dilip Dnyandeo Chougule had<\/p>\n
    also presented the nomination papers for the said election. The<\/p>\n
    Respondent submitted his nomination as a candidate of the<\/p>\n
    Nationalist Congress Party.\n<\/p>\n
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\n                                         4<\/span><\/p>\n
    4.        At the time of scrutiny of the nominations on 15.11.2003<\/p>\n
    the Petitioner was present with his election agent one Datta<\/p>\n
    Waghmare. The Respondent was present with his election agent<\/p>\n
    one Dilip Sopal, who at that time was the Minister of State for Law<\/p>\n
    and Judiciary, State of Maharashtra. The said Subhash Rajaram<\/p>\n
    Patil and Dilip Chougule were also present. A large number of the<\/p>\n
    Respondent’s supporters were also present at the time of scrutiny.\n<\/p>\n
    The said two alleged proposers of the Plaintiff Sou. Jaymala<\/p>\n
    Purnanand Mhetre and Sharif Mohammad Badshah Sutar were in<\/p>\n
    the   Respondents    camp     and       were    accompanied             by      the<\/p>\n
    Respondent.\n<\/p>\n
    5.        Dilip Chougule objected in writing to the nomination of<\/p>\n
    the Petitioner and the said Subhash Rajaram Patil. The objection<\/p>\n
    to the Petitioner’s nomination was that the said Sau. Jaymala<\/p>\n
    Mhetre and Sharif Sutar had not signed the Petitioner’s nomination<\/p>\n
    and their signatures therein were not genuine.                   He therefore<\/p>\n
    sought   the   cancellation   and       rejection   of     the      Petitioner’s<\/p>\n
    nomination.\n<\/p>\n
    6.        After the said objection was filed, the said two proposers<\/p>\n
    viz. Sau. Jaymala Purnanand Mhetre and Sharif Mohammad<\/p>\n
    Badshah Sutar were produced by the Respondent and his election<\/p>\n
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\n                                      5<\/span><\/p>\n
    agent before the Returning Officer. The said proposers submitted<\/p>\n
    their written complaints both dated 15.11.2003 to the Returning<\/p>\n
    Officer. Sau. Jaymala Purnanand Mhetre stated that she had not<\/p>\n
    affixed her signature as a proposer on any nomination papers filed<\/p>\n
    in the said election and that she had learnt that her name had<\/p>\n
    been written and her signature had been forged as a proposer on<\/p>\n
    the Petitioner’s nomination paper. Alongwith the said complaint,<\/p>\n
    she enclosed an affidavit inter-alia also stating that the signature<\/p>\n
    on the Petitioner’s nomination papers was not hers.\n<\/p>\n
              The complaint filed by the said Sharif Mohammad Sutar<\/p>\n
    was similar to the one filed by Sau. Jaymala Purnanand Mhetre.\n<\/p>\n
    The said Sharif Mohammad Sutar had also filed an affidavit similar<\/p>\n
    to the one filed by Sau. Jaymala Purnanand Mhetre.\n<\/p>\n
    7.        The Returning Officer according to the Petitioner<\/p>\n
    wrongly entertained the evidence in the form of complaints and<\/p>\n
    affidavits. The Petitioner was accordingly required to file his own<\/p>\n
    affidavit and the affidavit of five of his other proposers and the<\/p>\n
    affidavit of said Ratan Govind Pandit, who is the brother of the said<\/p>\n
    Sau. Jaymala Purnanand Mhetre.\n<\/p>\n
              In his affidavit, the said Petitioner stated that he had<\/p>\n
    perused the affidavits and the objections\/complaints filed by the<\/p>\n
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\n                                       6<\/span><\/p>\n
    said two proposers. He stated that the same were false. The<\/p>\n
    Petitioner further stated that the said two proposers had in his<\/p>\n
    presence affixed the signatures on his nomination form and that he<\/p>\n
    had himself obtained his signatures by requesting them to do so.\n<\/p>\n
    He stated that he knew both of them and that they had affixed their<\/p>\n
    signatures in his presence.      According to the Petitioner, the<\/p>\n
    Respondent was the son of the then Minister for Public Works<\/p>\n
    Department and with an intention to have the Petitioner’s<\/p>\n
    nomination paper declared invalid, he had abducted the said two<\/p>\n
    proposers and by creating terror, had compelled them to make the<\/p>\n
    said false complaints and affidavits.\n<\/p>\n
              The five proposers of the Petitioner also filed a joint<\/p>\n
    affidavit dated 15.11.2003 in which they stated that they had<\/p>\n
    affixed signatures voluntarily at the same time and in the presence<\/p>\n
    of each other as well as in the presence of the said two proposers<\/p>\n
    Sau. Jaymala Purnanand Mhetre and Sharif Mohammad Sutar.\n<\/p>\n
    They further stated that on 14.11.2003 the Respondent with his<\/p>\n
    supporters had arrived at their village at about 9.00 and 9.30 p.m.,<\/p>\n
    created terror in their minds and threatened them for having<\/p>\n
    signed the Petitioner’s nomination and demanded their giving in<\/p>\n
    writing that they had not affixed their signatures to the Petitioner’s<\/p>\n
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\n                                      7<\/span><\/p>\n
    nomination form. They stated that the said persons had terrorized<\/p>\n
    and intimidated the said two proposers, abducted them and<\/p>\n
    brought them to the venue. They stated that they brought them in<\/p>\n
    the captivity of the associates of the Respondent who did not even<\/p>\n
    allowed them to talk to the said two proposers and in fact<\/p>\n
    threatened them. They stated that the complaints and affidavits<\/p>\n
    were false and had been made under pressure.\n<\/p>\n
    8.
\n              The said Ratan Govind Pandit, who is the brother of<\/p>\n
    Sau. Jaymala Purnanand Mhetre filed an affidavit also dated<\/p>\n
    15.11.2003 in which he stated that his sister had in his presence<\/p>\n
    as well as in the presence of other proposers affixed her signature<\/p>\n
    as a proposer no.8 to the nomination paper of the Petitioner and<\/p>\n
    that she had done so voluntarily.        He also stated that the<\/p>\n
    Petitioner’s associates had arrived between 9.00 and 9.30 at night.\n<\/p>\n
    He reiterated what is stated in the affidavit of the five proposers<\/p>\n
    regarding the Respondent’s associates terrorizing the Petitioner’s<\/p>\n
    proposers and abducting the said two persons.\n<\/p>\n
    9.        On 15.11.2003 the Petitioner made a representation in<\/p>\n
    writing to the Returning Officer stating that the affidavits filed by<\/p>\n
    the said two proposers were notarized in the Office of the<\/p>\n
    Returning Officer by one Jakson; that the affidavits were prepared<\/p>\n
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\n                                       8<\/span><\/p>\n
    just before the time of scrutiny and that there were no signatures<\/p>\n
    of the notary in his register. He stated that the notary had himself<\/p>\n
    submitted the affidavit at about 10.45 a.m. in the Office of the<\/p>\n
    Collector. However, he stated that the notary did not even have<\/p>\n
    the copy of the said affidavit. The Petitioner therefore stated that it<\/p>\n
    would be just that both the said persons be called and made to sit<\/p>\n
    in the Office of the Returning Officer and that a copy of their<\/p>\n
    affidavits as well as the said notary’s record be called for. The<\/p>\n
    application was also made on 15.11.2003.\n<\/p>\n
    10.       The Returning Officer adjourned the scrutiny of the<\/p>\n
    nominations till 3.45 p.m. on the said day. The Returning Officer<\/p>\n
    also called for the records from the Office of the Mangalwedha<\/p>\n
    Municipal Council for the purpose of verification of the signatures<\/p>\n
    of the said two proposers from the records of the Mangalwedha<\/p>\n
    Municipal Council.\n<\/p>\n
              The scrutiny resumed at about 3.45 p.m. on 15.11.2003.\n<\/p>\n
    11.       In paragraph 16 of the petition, it is stated :-\n<\/p>\n
                     “16. Petitioner states that the Returning
\n                     Officer adjourned the scrutiny of Nominations
\n                     till 3.45 p.m. and in the meanwhile called for
\n                     records from the office of the Mangalwedha
\n                     Municipal Council for the purpose of
\n                     verification of signatures of the said
\n                     proposers from the records of the said<\/p>\n
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\n                                       9<\/span><\/p>\n
                    Mangalwedha Municipal Council.               The
\n                    scrutiny resumed at around 3.45 p.m. on<\/p>\n
                    15\/11\/2003. The Returning Officer thereafter
\n                    verified the signatures of the said two<\/p>\n
                    proposers of the Petitioner on the Petitioner’s
\n                    nomination paper by comparing the same
\n                    with their signatures on the proceeding
\n                    books and other records of the Mangalwedha<\/p>\n
                    Municipal Council. The Petitioner and his
\n                    Advocate requested the Returning Officer to
\n                    go through the Affidavit submitted by
\n                    Petitioner, Joint Affidavit of the said five<\/p>\n
                    proposers of the Petitioner, the affidavit of
\n                    said Ratan Govind Pandit and also the<\/p>\n
                    Representation of the Petitioner.
\n                    Petitioner and his Advocate contended that
\n                                                                 The<\/p>\n
                    the joint Affidavit of the said five proposers of<\/p>\n
                    the Petitioner and affidavit of the said Ratan
\n                    Govind Pandit clearly falsify the stand taken
\n                    by the said two proposers and that the
\n                    objections to the nomination of the petitioner
\n                    are not tenable. Thereafter at around 5.15<\/p>\n
                    p.m. the Returning Officer orally informed the<\/p>\n
                    Petitioner and others that the nominations of
\n                    the Petitioner and other candidate Mr.
\n                    Subhash Patil have been rejected. Thus
\n                    only two candidates i.e. the Respondent<\/p>\n
                    herein and said Shri Dilip Dnyandeo
\n                    Chougule remained in the fray for the said
\n                    Election.”\n<\/p><\/blockquote>\n
    12.       Thereafter, the Returning Officer passed a written order<\/p>\n
    on the same day rejecting the nomination of the Petitioner for the<\/p>\n
    said election. I will refer to the order in detail at the appropriate<\/p>\n
    stage.\n<\/p>\n
              On 17.11.2003, the said Dilip Dnyandeo Chougule<\/p>\n
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\n                                      10<\/span><\/p>\n
    withdrew his nomination.      Thus, the Respondent got elected<\/p>\n
    uncontested.   The Returning Officer declared the Respondent as<\/p>\n
    elected uncontested from the said constituency under Section 53<\/p>\n
    (2) of the Representation of the People Act, 1951.\n<\/p>\n
    13.       On 18.11.2003 the Petitioner filed Writ Petition No.7955<\/p>\n
    of 2003 in this Court challenging the order of the Returning Officer.\n<\/p>\n
    By an order dated 20.1.2003 the Petitioner was allowed to<\/p>\n
    withdraw the Writ Petition with liberty to adopt the appropriate<\/p>\n
    remedy.\n<\/p>\n
    14.       Considering the manner in which the matter has<\/p>\n
    proceeded and the issues settled, it is not necessary to refer to the<\/p>\n
    detailed narration in the above Election Petition regarding the<\/p>\n
    opinions of the handwriting experts, obtained by the Petitioner and<\/p>\n
    the documents in connection therewith.\n<\/p>\n
    15.       The Petitioner filed the present petition on 30.12.2003.\n<\/p>\n
    The Respondent filed Application No.1 of 2004 in the above<\/p>\n
    Election Petition, seeking a summarily dismissal of the petition. It<\/p>\n
    was contended that the Petitioner had alleged corrupt practices<\/p>\n
    within the meaning of that expression in the said Act and in<\/p>\n
    particular Section 100 thereof but had failed to comply with the<\/p>\n
    requirements of the said Act. Secondly, it was contended that<\/p>\n
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\n                                      11<\/span><\/p>\n
    there was a non-joinder of necessary parties.\n<\/p>\n
                The application was dismissed by an order and<\/p>\n
    judgment dated 25.11.2004. I noted the stand taken on behalf of<\/p>\n
    the Petitioner to the effect that the said affidavits filed by and on<\/p>\n
    behalf of the Petitioners before the Returning Officer were referred<\/p>\n
    to only to complete the narration of facts; that the contents thereof<\/p>\n
    had not been adopted in the Election Petition for the purpose of<\/p>\n
    contending that the Respondents were guilty of any corrupt<\/p>\n
    practices and that nowhere in the Election Petition had the merits<\/p>\n
    and contents of the said affidavits and the said Writ Petition been<\/p>\n
    adopted or incorporated so as to form the basis of or the cause of<\/p>\n
    action on which the reliefs in the Election Petition had been<\/p>\n
    claimed. I also noted the contents of paragraph 28 of the Election<\/p>\n
    Petition which were relied upon at that hearing in support of the<\/p>\n
    contention that corrupt practices had not been alleged in the<\/p>\n
    petition.   I further noted that it was contended on behalf of the<\/p>\n
    Petitioner that he had challenged the decision of the Returning<\/p>\n
    Officer rejecting his nomination on the basis of the manner in<\/p>\n
    which the decision had been taken        to wit, the Petitioner had<\/p>\n
    challenged the decision making process adopted by the Returning<\/p>\n
    Officer. I held that the challenge to the decision making process<\/p>\n
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\n                                      12<\/span><\/p>\n
    adopted by the Respondent was different from the ground of<\/p>\n
    corrupt practices.   I rejected the contention on behalf of the<\/p>\n
    Respondent that if corrupt practices have been alleged in the<\/p>\n
    petition and there is non-compliance with the provisions of Section<\/p>\n
    83 of the Act, in that regard the petition is not maintainable even if<\/p>\n
    it is also founded on other grounds.\n<\/p>\n
              It would be convenient to set out paragraph 20 of that<\/p>\n
    order which reads thus :-\n<\/p>\n
                    “20. Before parting with this order it is<\/p>\n
                    necessary to refer to the fact that Mr. Aney
\n                    reiterated that the Petitioner, for the purpose
\n                    of this petition, does not allege any corrupt
\n                    practice by or on behalf of the Respondent.
\n                    Thus at the trial, the Petitioner shall not seek<\/p>\n
                    to raise or frame any issue in this regards. It<\/p>\n
                    will not be necessary for the Respondent in
\n                    his written statement to deal with any corrupt
\n                    practice including those alleged in the Writ
\n                    Petition or in Exhibits-H, I and J to the<\/p>\n
                    Election Petition. This logically follows from
\n                    paragraph no.28 of the election petition and
\n                    Mr. Aney’s statement that it is the decision
\n                    making process\/the manner in which the
\n                    Returning Officer has come to his decision<\/p>\n
                    that is under challenge and the sole basis on
\n                    which the election petition is based. It is
\n                    further clarified that all contentions with
\n                    respect to the grounds on which the Election
\n                    Petition is founded are kept open including
\n                    the grounds of non-joinder of necessary
\n                    parties as well as the ground that by merely
\n                    by even successfully challenging the decision
\n                    making process adopted by the Returning<\/p>\n
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\n                                       13<\/span><\/p>\n
                     Officer the election is not liable to be set
\n                     aside.”<\/p><\/blockquote>\n
              By an order dated 14.2.2005, the Supreme Court<\/p>\n
    dismissed the SLP filed against the said order.\n<\/p>\n
    WRITTEN STATEMENT :-\n<\/p>\n
    16.       The Respondent has stated at the outset, that the
\n    written<\/p>\n
    statement is filed to deal with the scope of the petition as limited by<\/p>\n
    the Petitioner and as recorded by the said order dated 25.11.2004<\/p>\n
    passed in Application No.1 of 2004.           Accordingly, the written<\/p>\n
    statement deals essentially with the Petitioner’s contentions<\/p>\n
    regarding the decision making process.           The Respondent has<\/p>\n
    traversed the various averments and submissions in the Election<\/p>\n
    Petition in this regard. In short, the Respondent has contended<\/p>\n
    that the decision making process adopted by the Returning Officer<\/p>\n
    was in accordance with the provisions of the said Act.\n<\/p>\n
              I will refer to the submissions in the written statement in<\/p>\n
    detail while dealing with the issues.\n<\/p>\n
    17.       On 25.11.2005, the following issues were framed :-\n<\/p>\n
    1.         Whether the Petitioner proves that his nomination for<\/p>\n
               election to the Local Authorities Constituency, Solapur<\/p>\n
               of   the   Maharashtra       Legislative   Council        Biennial<\/p>\n
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\n                                   14<\/span><\/p>\n
          elections      2003   was    improperly   rejected        by     the<\/p>\n
          Returning Officer ?\n<\/p>\n
    2.    Whether the Returning Officer committed breach of<\/p>\n
          the provisions of Sub-section (1) of Section 36 of the<\/p>\n
          Representation of the People Act, 1951 by entertaining<\/p>\n
          Petitioner’s two proposers namely; Sau. Jaymala<\/p>\n
          Purnanand Mhetre and Sharif Mohammad Badshah<\/p>\n
          Sutar personally at the time and place of scrutiny of the<\/p>\n
          nomination and by further accepting and relying on their<\/p>\n
          Affidavits and written complaints, as alleged by the<\/p>\n
          petitioner ?\n<\/p>\n
    3.    Whether the enquiry conducted by the Returning Officer<\/p>\n
          resulting into the rejection of the Petitioner’s nomination<\/p>\n
          for the election in question was not in accordance with<\/p>\n
          the provisions of Sub-section (2) of Section 36 of the<\/p>\n
          Representation of the People Act, 1951, as alleged by<\/p>\n
          the petitioner ?\n<\/p>\n
    4.    Whether the Petitioner proves that result of the election<\/p>\n
          in question, in so far as it concerns the returned<\/p>\n
          candidate i.e. Respondent, herein, has been materially<\/p>\n
          affected by non-compliance with the provisions of Sub-\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 13:51:51 :::<\/span>
\n                                       15<\/span><\/p>\n
               sections (1) and (2) of Section 36 of the Representation<\/p>\n
               of the People Act, 1951 ?\n<\/p>\n
    5.         Whether the election of the Respondent as member of<\/p>\n
               the Maharashtra Legislative Council from the Local<\/p>\n
               Authorities Constituency, Solapur and the Maharashtra<\/p>\n
               Legislative Council Biennial Election, 2003 is void and<\/p>\n
               liable to be set aside on the grounds provided under<\/p>\n
               clause (c) of sub-section (1) of Section 100 or both of<\/p>\n
               the Representation of the People Act, 1951 ?\n<\/p>\n
    6.         What order is the Petitioner entitled to, if any ?\n<\/p>\n
    18.       The Petitioner filed his affidavit in lieu of examination-in-\n<\/p>\n
    chief dated 4.10.2006.\n<\/p>\n
              On 6.10.2006 the Petitioner examined himself. The said<\/p>\n
    affidavit in lieu of examination-in-chief was tendered with the<\/p>\n
    consent of the parties. Some of the documents including those<\/p>\n
    produced by production witness were taken on record and marked<\/p>\n
    Exhibits “A” to “N”.\n<\/p>\n
    19(A).    An objection was raised to the evidence in paragraph 3<\/p>\n
    commencing from the third sentence therein, to the end of the<\/p>\n
    paragraph.     The arguments on the objection were heard. The<\/p>\n
    ruling however had not been given at the request of Mr.Patil, the<\/p>\n
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\n                                      16<\/span><\/p>\n
    learned counsel appearing on behalf of the Petitioner, who<\/p>\n
    requested an opportunity to supplement his submissions.                The<\/p>\n
    matter was accordingly adjourned from time to time.\n<\/p>\n
    (B).        In the meanwhile with the consent of the counsel, while<\/p>\n
    the Petitioner was still being examined, certain witnesses were<\/p>\n
    allowed to appear only as production witnesses. The documents<\/p>\n
    produced by them were ordered to be kept in the custody of the<\/p>\n
    (C ).\n<\/p>\n
    Court and their attendance was dispensed with until further orders.\n<\/p>\n
                On 26.11.2007 the hearing on the objection stood<\/p>\n
    concluded. I upheld the objection subject to certain clarifications,<\/p>\n
    by an order dated 26.11.2006.\n<\/p>\n
    (i).        The objection was based on my order and judgment<\/p>\n
    dated 25.11.2004 dismissing the Respondent’s Application No.1 of<\/p>\n
    2004.       Mr.Sawant, the learned Senior Counsel appearing on<\/p>\n
    behalf of the Respondent submitted that in view of the order dated<\/p>\n
    24.11.2004, the question as to whether the Petitioner’s nomination<\/p>\n
    form was in fact signed by all the signatories thereto is not<\/p>\n
    relevant.      He contended that the Petitioner had expressly<\/p>\n
    restricted the challenge to the decision making process adopted by<\/p>\n
    the Returning Officer.\n<\/p>\n
    (D).        One of the contentions raised on behalf of the<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:51:51 :::<\/span>
\n                                     17<\/span><\/p>\n
    Petitioners was that the concession recorded in the order dated<\/p>\n
    24.11.2004 was wrongly made and that the same was not binding<\/p>\n
    on the Petitioner. I observed that even if that was so, it would be<\/p>\n
    necessary in the first instance for the Petitioner to have the same<\/p>\n
    withdrawn\/revoked and that if such an application is granted,<\/p>\n
    fairness demands that the Respondent be given an opportunity to<\/p>\n
    deal with the same.\n<\/p>\n
    20(A).\n<\/p>\n
              The matter was thereafter adjourned to enable the<\/p>\n
    Petitioner to either challenge the ruling or to make an application<\/p>\n
    for revoking the concession.\n<\/p>\n
    (B)       In January, 2008 the Petitioner filed an Application being<\/p>\n
    Application No.2 of 2008 in the above petition for an order<\/p>\n
    declaring the concession given by the counsel to the effect that the<\/p>\n
    Election Petition is limited only to the challenge to the decision<\/p>\n
    making process of the Returning Officer, is wrong and not binding<\/p>\n
    on the Applicant and that the Election Petition be proceeded with<\/p>\n
    on the grounds, facts and material particulars raised and\/or stated<\/p>\n
    in the Election Petition.   It was also prayed that the objection<\/p>\n
    raised on behalf of the Respondent to the Petitioner’s affidavit in<\/p>\n
    lieu of examination-in-chief be overruled and the order dated<\/p>\n
    6.11.2007 be suitably modified and\/or set aside.\n<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 13:51:51 :::<\/span>
\n                                              18<\/span><\/p>\n
    (C ).     By an order dated 24.4.2008 I recorded the Petitioner’s<\/p>\n
    application for leave to withdraw the application. It was stated that<\/p>\n
    the Petitioner reserved his right to raise the contention in this<\/p>\n
    application in an Appeal that may be filed in the Supreme.                                   I<\/p>\n
    observed that I did not and could not express any view on the<\/p>\n
    reservation.   By the said order, I allowed the application to be<\/p>\n
    withdrawn.\n<\/p>\n
    21.<\/p>\n
    (A).            24.6.2008<\/p>\n
              The matter thereafter proceeded to trial on 24.6.2008.\n<\/p>\n
              On                      the     examination            of    the      Petitioner<\/p>\n
    continued. Mr. Sawant objected to the third sentence of paragraph<\/p>\n
    4 and the last sentence of paragraphs 6 and 7 of the affidavit in<\/p>\n
    lieu of examination-in-chief, which read thus :-\n<\/p>\n
                    “4. ………………………………………………………….
\n                    I say that the nomination paper was complete
\n                    in all respects and the same was validly filed<\/p>\n
                    and I was validly nominated for the said
\n                    election.”<\/p><\/blockquote>\n
              This sentence was preceded by the Petitioner, deposing<\/p>\n
    that he had personally submitted the nomination paper on<\/p>\n
    14.11.2003 to the Returning Officer at his office and had deposited<\/p>\n
    the requisite amount.\n<\/p>\n
                    “6. ………………………………………………………..
\n                    At that time I saw Sou. Jaymala Purnanand
\n                    Mhetre and Sharif Mohammad Badshah<\/p>\n
                                                                      ::: Downloaded on – 09\/06\/2013 13:51:51 :::<\/span>
\n                                               19<\/span><\/p>\n
                     Sutar in the camp of Respondent and were
\n                     accompanied by Respondent.”<\/p><\/blockquote>\n
                This sentence was preceded by the Petitioner, narrating<\/p>\n
    the facts regarding his presence with his election agent and the<\/p>\n
    presence of the Respondent with his election agent and the two<\/p>\n
    other candidates at the Office of the Returning Officer on<\/p>\n
    15.11.2003 as well as the statement that a large number of the<\/p>\n
    Respondent’s supporters were also present at the venue of<\/p>\n
    scrutiny.\n<\/p>\n
                     “7……………………………………………………………
\n                     I say that the objection was false and without
\n                     any foundation and without any material on
\n                     record and the same should not have been
\n                     considered by the Returning Officer.”<\/p><\/blockquote>\n
                This sentence was preceded by the Petitioner’s<\/p>\n
    deposition regarding the objection taken by the said Dilip<\/p>\n
    Chougule to his nomination.\n<\/p>\n
                Mr. Sawant’s objection was based on my ruling dated<\/p>\n
    26.11.2007. Mr. Patil submitted that the statements were not with<\/p>\n
    a view to establish the fact that the said two persons had executed<\/p>\n
    the nomination form and that the statements objected to were only<\/p>\n
    for the purpose of deciding as to whether the decision making<\/p>\n
    process was valid.\n<\/p>\n
                                                                       ::: Downloaded on – 09\/06\/2013 13:51:51 :::<\/span>
\n                                       20<\/span><\/p>\n
    (B).       I ruled that the apprehension expressed by Mr. Sawant<\/p>\n
    that the evidence, if allowed, would permit the Petitioner to prove a<\/p>\n
    corrupt practice, was unfounded.       I further ruled that the same<\/p>\n
    facts may constitute evidence on two grounds viz. evidence to<\/p>\n
    establish the corrupt practice as well as evidence to support the<\/p>\n
    case that the decision making process was wrong and that so<\/p>\n
    long as it was clarified that it was only for the latter that the<\/p>\n
    evidence was tendered, there could be no objection to the same. I<\/p>\n
    therefore overruled the objection subject to the clarifications<\/p>\n
    mentioned in the ruling.\n<\/p>\n
    (C ).      Both the learned counsel thereafter stated, as recorded<\/p>\n
    in my order dated 24.6.2008, that the rest of the evidence in lieu of<\/p>\n
    examination-in-chief would also be subject to the same objections<\/p>\n
    and that the objections will be dealt with in a similar manner,<\/p>\n
    including the clarification.\n<\/p>\n
    22.        Thereafter    the   cross-examination    of     the     witness<\/p>\n
    commenced on 2.7.2008 and was completed on that day itself.\n<\/p>\n
    There was no re-examination.\n<\/p>\n
    23.        Mr. Patil submitted that where there is an improper<\/p>\n
    rejection of the nomination, the result of the election is presumed<\/p>\n
    to have been materially affected and therefore must be set aside<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 13:51:51 :::<\/span>
\n                                        21<\/span><\/p>\n
    irrespective of whether the returned\/successful candidate was<\/p>\n
    responsible for the same or not.\n<\/p>\n
    24.        Section 100(1) is clear. Where, subject to the provisions<\/p>\n
    of sub-section (2) of Section 100, the Court is of the opinion that<\/p>\n
    any nomination has been improperly rejected, the High Court shall<\/p>\n
    declare the election of the returned candidate to be void. The<\/p>\n
    provisions of sub-section (2) of Section 100 are not applicable in<\/p>\n
    the present case. This view finds support from the judgments of<\/p>\n
    the Supreme Court in Somnath Rath v. Bikram K. Arukh & Ors.,<\/a><\/p>\n
    (1999) 9 Supreme Court Cases, 538. The Supreme Court held as<\/p>\n
    under :-\n<\/p>\n
                         “14. The High Court having found and, in<\/p>\n
                    our opinion, rightly that the ground on which
\n                    the Returning Officer had rejected the nomi-
\n                    nation paper of Respondent 7, viz., that he
\n                    was a dealer under the public distribution sys-
\n                    tem did not disqualify him from contesting the<\/p>\n
                    election, ought not to have proceeded any fur-
\n                    ther because it was essentially a case where
\n                    the rejection of the nomination paper by the
\n                    Returning Officer, insofar as Respondent 7
\n                    Shri Panchanan Das is concerned, was im-
\n                    proper because Respondent 7 was not dis-
\n                    qualified in terms of Section 9-A of the Act.\n<\/p><\/blockquote>\n
                    The improper rejection of a nomination paper
\n                    by itself and without anything more is a
\n                    ground under Section 100(1)(c) of the Act to
\n                    declare the election void. No enquiry as to
\n                    “material effect” on account of the rejection of
\n                    the nomination paper is required to be made
\n                    under Section 100(1)(c) of the Act. The en-
\n                    quiry whether the result of an election has
\n                    been materially affected insofar as the re-
\n                    turned candidate is concerned is required in
\n                    the cases covered by Section 100(1)(d) of the
\n                    Act.”\n<\/p><\/blockquote>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:51:51 :::<\/span>
\n                                        22<\/span><\/p>\n
    25.       In Krishna   Mohini   v.   Mohinder   Nath   Sofat,<\/a>   (2000)<\/p>\n
    Supreme   Court   Cases,   145, the Supreme Court held that under<\/p>\n
    Section 100(1)(c) of the said Act the improper rejection of any<\/p>\n
    nomination is by itself enough to avoid the election without<\/p>\n
    requiring further proof of the result of the election having been<\/p>\n
    materially affected.\n<\/p>\n
              In Santosh Yadav v. Narender Singh,<\/a> (2002) 1 Supreme<\/p>\n
    26.<\/p>\n
    Court Cases, 160, it was held :-\n<\/p>\n
                    “7. Parliament has drawn a clear distinction
\n                    between an improper rejection of any nomi-\n<\/p><\/blockquote>\n
                    nation and the improper acceptance of any
\n                    nomination. In the former case, to avoid an
\n                    election, it is not necessary to further prove
\n                    that the result of the election has been mate-
\n                    rially affected. The underlying reasoning for<\/p>\n
                    this was well set out by a Constitution Bench
\n                    of this Court in Surendra   Nath   Khosla v. S.\n<\/p><\/blockquote>\n
                    Dalip   Singh. There is a presumption in the
\n                    case of improper rejection of a nomination
\n                    paper that it has materially affected the result
\n                    of the election. The fact that one of several
\n                    candidates for an election was kept out of the<\/p>\n
                    arena is by itself a very material considera-
\n                    tion. The officer rejecting the nomination pa-
\n                    per of a candidate may have kept out the
\n                    most desirable candidate, the most desirable
\n                    from the point of view of electors and the<\/p>\n
                    most formidable candidate from the point of
\n                    view of the other candidates, from seeking
\n                    election and therefore Parliament felt that an
\n                    improper rejection of any nomination paper is
\n                    conclusive proof of the election being void
\n                    and therefore dispensed with the need of evi-
\n                    dence being tendered in proof of the result of
\n                    the election having been materially affected.
\n                    On the other hand, in the case of an improper
\n                    acceptance of a nomination paper, proof is
\n                    required by way of evidence demonstrating<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 13:51:51 :::<\/span>
\n                                        23<\/span><\/p>\n
                       that the coming into the arena of an additional
\n                       candidate has had the effect on the election<\/p>\n
                       in such a manner that the best choice of the
\n                       electorate was excluded.”\n<\/p><\/blockquote>\n
    27.       Mr. Sawant was unable to dispute the correctness of this<\/p>\n
    proposition.   Thus, if I were to come to a conclusion that the<\/p>\n
    decision making process was illegal and the Petitioner’s<\/p>\n
    nomination was wrongly rejected, the result of the election is liable<\/p>\n
    to be set aside.\n<\/p>\n
    28.<\/p>\n
              Mr.Patil placed strong reliance upon the observations of<\/p>\n
    the Supreme Court in Rakesh   Kumar   v.   Sunil   Kumar<\/a> (1999)   2<\/p>\n
    Supreme Court Cases, 489 (paragraphs 18 to 21) to contend that if<\/p>\n
    the procedure under the Act or as prescribed in the Handbook for<\/p>\n
    Returning Officers is not followed, the rejection of the Petitioner’s<\/p>\n
    nomination must be held to be wrong.\n<\/p>\n
              The facts in the present case are entirely different. It<\/p>\n
    was not contended before me that an adequate opportunity was<\/p>\n
    not given to the Petitioner to establish his case. Mr. Patil however<\/p>\n
    submitted that the judgment supports his submission that even if a<\/p>\n
    wrong procedure is adopted leading to an improper rejection of the<\/p>\n
    nomination of a candidate, the election is liable to be set aside.\n<\/p>\n
    29.       I will proceed on the basis that a wrong procedure being<\/p>\n
    adopted, would lead to the elections being set aside.\n<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 13:51:51 :::<\/span>
\n                                      24<\/span><\/p>\n
          Re. Issue No.3: Whether the enquiry conducted by the
\n                          Returning Officer resulting into the<\/p>\n
                          rejection of the Petitioner’s nomination
\n                          for the election in question was not in<\/p>\n
                          accordance with the provisions of
\n                          Sub-section (2) of Section 36 of the
\n                          Representation of the People Act,
\n                          1951, as alleged by the petitioner ?\n<\/p>\n
    30.       Section 36 of the Representation of People Act, 1951<\/p>\n
    reads as under :-\n<\/p>\n
                    “36. Scrutiny of nominations.–  (1) On the
\n                    date fixed for the scrutiny of nominations un-\n<\/p><\/blockquote>\n
                    der Section 30, the candidates, their election
\n                    agents, one proposer of each candidate, and
\n                    one other person duly authorised in writing by<\/p>\n
                    each candidate, but no other person, may at-
\n                    tend at such time and place as the returning
\n                    officer may appoint; and the returning officer
\n                    shall give them all reasonable facilities for ex-\n<\/p><\/blockquote>\n
                    amining the nomination papers of all candi-
\n                    dates which have been delivered within the<\/p>\n
                    time and in the manner laid down in Section
\n                    33.<\/span><\/p>\n
                           (2) The returning officer shall then ex-
\n                    amine the nomination papers and shall de-
\n                    cide all objections which may be made to any
\n                    nomination and may, either on such objection
\n                    or on his own motion, after such summary in-\n<\/p><\/blockquote>\n
                    quiry, if any, as he thinks necessary, reject
\n                    any nomination on any of the following
\n                    grounds:–\n<\/p><\/blockquote>\n
                            (a) that on the date fixed for the scruti-
\n                    ny of nominations the candidate either is not
\n                    qualified or is disqualified for being chosen to
\n                    fill the seat under any of the following provi-
\n                    sions that may be applicable, namely:–\n<\/p><\/blockquote>\n
                                                       ::: Downloaded on – 09\/06\/2013 13:51:51 :::<\/span>
\n                        25<\/span><\/p>\n
      Articles 84, 102, 173 and 191,<\/p>\n
      [Part II of this Act and Sections 4 and 14 of<\/p>\n
      the Government of Union Territories Act,
\n      1963 (20 of 1963); or<\/p>\n
            (b)that there has been a failure to com-\n<\/p>\n
      ply with any of the provisions of Section 33 or
\n      Section 34; or\n<\/p>\n
           (c) that the signature of the candidate or<\/p>\n
      the proposer on the nomination paper is not
\n      genuine.\n<\/p>\n
             (3) Nothing contained in clause ( b ) or
\n      clause ( c  ) of sub-section (2) shall be<\/p>\n
      deemed to authorise the rejection of the nom-
\n      ination of any candidate on the ground of any
\n      irregularity in respect of a nomination paper,
\n      if the candidate has been duly nominated by<\/p>\n
      means of another nomination paper in re-\n<\/p>\n
      spect of which no irregularity has been com-
\n      mitted.\n<\/p>\n
            (4) The returning officer shall not reject<\/p>\n
      any nomination paper on the ground of any
\n      defect which is not of a substantial character.\n<\/p>\n
             (5) The returning officer shall hold the
\n      scrutiny on the date appointed in this behalf<\/p>\n
      under clause ( b ) of Section 30 and shall not
\n      allow any adjournment of the proceedings ex-
\n      cept when such proceedings are interrupted
\n      or obstructed by riot or open violence or by
\n      causes beyond his control:\n<\/p>\n
             Provided that in case an objection is
\n      raised by the returning officer or is made by<\/p>\n
                                       ::: Downloaded on – 09\/06\/2013 13:51:51 :::<\/span>
\n                                      26<\/span><\/p>\n
                    any other person the candidate concerned
\n                    may be allowed time to rebut it not later than<\/p>\n
                    the next day but one following the date fixed
\n                    for scrutiny, and the returning officer shall<\/p>\n
                    record his decision on the date to which the
\n                    proceedings have been adjourned.\n<\/p>\n
                            (6) The returning officer shall endorse<\/p>\n
                    on each nomination paper his decision ac-\n<\/p>\n
                    cepting or rejecting the same and, if the nom-
\n                    ination paper is rejected, shall record in writ-
\n                    ing a brief statement of his reasons for such<\/p>\n
                    rejection.\n<\/p>\n
                            (7) For the purposes of this section, a
\n                    certified copy of an entry in the electoral roll
\n                    for the time being in force of a constituency<\/p>\n
                    shall be conclusive evidence of the fact that
\n                    the person referred to in that entry is an elec-
\n                    tor for that constituency, unless it is proved
\n                    that he is subject to a disqualification men-\n<\/p>\n
                    tioned in Section 16 of the Representation of
\n                    the People Act, 1950 (43 of 1950).\n<\/p>\n
                           (8) Immediately after all the nomination
\n                    papers have been scrutinized and decisions<\/p>\n
                    accepting or rejecting the same have been
\n                    recorded, the returning officer shall prepare a
\n                    list of validly nominated candidates, that is to
\n                    say, candidates whose nominations have
\n                    been found valid, and affix it to his notice<\/p>\n
                    board.”\n<\/p>\n
    31.       Mr.Patil submitted that sub-section (2) of Section 36<\/p>\n
    expressly requires only a “summary inquiry”. He submitted that<\/p>\n
    the decision of the Returning Officer is liable to be set aside on the<\/p>\n
    ground that despite Section 36(2) requiring only a summary<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                        27<\/span><\/p>\n
    inquiry, he wrongly permitted the said two proposers to file<\/p>\n
    affidavits.     He further wrongly referred to the affidavits while<\/p>\n
    coming to his decision. Mr.Patil reiterated the contentions raised<\/p>\n
    in ground `C’ of the petition submitting that the Returning Officer<\/p>\n
    embarked upon an inquiry which was beyond the scope of Section<\/p>\n
    36(2) by entertaining evidence in the nature of written complaints<\/p>\n
    and the affidavits of the said two proposers. The action of the<\/p>\n
    Returning Officer rejecting the nomination paper of the Petitioner<\/p>\n
    by resorting to “said detailed inquiry” is improper. The rejection of<\/p>\n
    the Petitioner’s nomination was therefore improper.\n<\/p>\n
    32.           I am unable to accept Mr. Patil’s submission. Section 36<\/p>\n
    (2) requires a summary inquiry as the Returning Officer thinks<\/p>\n
    necessary. The provision confers ample power on the Returning<\/p>\n
    Officer as regards the nature and extent of the inquiry. Indeed, I<\/p>\n
    can understand a grievance that the extent of the material referred<\/p>\n
    to in arriving at the decision under Section 36(6) was inadequate.\n<\/p>\n
    I cannot appreciate a grievance that the depth of the inquiry was<\/p>\n
    too great. So long as the nature and extent of the inquiry was<\/p>\n
    adequate to        meet the ends of justice in a given case, the<\/p>\n
    contention that the inquiry was too detailed or extensive, cannot be<\/p>\n
    upheld.\n<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                      28<\/span><\/p>\n
    33.       Apart from raising the contention there was no<\/p>\n
    suggestion as to what the appropriate course should have been in<\/p>\n
    the present case.\n<\/p>\n
    34.       The Returning Officer at the request of the Petitioner<\/p>\n
    called for the records of the Municipal Council of Mangalwedha to<\/p>\n
    compare the signatures of the said two proposers on the<\/p>\n
    Petitioner’s nomination form with the specimen signatures in the<\/p>\n
    record of the Municipal Council of Mangalwedha. The Returning<\/p>\n
    Officer on a comparison of the signatures found that there were<\/p>\n
    certain differences and that it was not possible to arrive at a<\/p>\n
    conclusion on this basis. In these circumstances, no fault can be<\/p>\n
    found with the approach adopted by the Returning Officer of<\/p>\n
    entertaining the written complaints and the affidavits. This was a<\/p>\n
    case of word against word. Indeed, if the Returning Officer had<\/p>\n
    based his decision only on the oral statement of the other<\/p>\n
    contesting candidates without satisfying himself that the said two<\/p>\n
    proposers had in fact disputed their signatures, the Petitioner<\/p>\n
    may have had a valid grievance against the decision. The written<\/p>\n
    complaint and       affidavits of the said two proposers and their<\/p>\n
    presence before the Returning Officer ensured their identity and<\/p>\n
    their stand.\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                      29<\/span><\/p>\n
    35.       Nor do I see anything wrong in the Returning Officer<\/p>\n
    having entertained the presence of the said two proposers for the<\/p>\n
    purpose of the inquiry as to the genuineness of their signatures in<\/p>\n
    the nomination papers of the Petitioner. The Returning Officer<\/p>\n
    would have been perfectly justified in insisting himself on the<\/p>\n
    presence of the said two proposers before arriving at his decision<\/p>\n
    regarding the genuineness of their signatures.        Their presence<\/p>\n
    establishes their identity.    Their identity and their presence<\/p>\n
    established that it was they who had filed the complaints and the<\/p>\n
    said affidavits. This eliminated a possible substantial dispute viz.\n<\/p>\n
    whether the said two proposers were the authors of the written<\/p>\n
    representation and the affiants stating that their signatures did not<\/p>\n
    appear on the nomination form of the Petitioner. I do not see any<\/p>\n
    bar to the Returning Officer having entertained their presence and<\/p>\n
    having these aspects clarified from them in person. Whether he<\/p>\n
    ought to have believed them or not is a different matter.\n<\/p>\n
    36.       It is possible that a written complaint or even an affidavit<\/p>\n
    may be fabricated. For instance, in the present case, one of the<\/p>\n
    contesting candidates could have fabricated the complaint and the<\/p>\n
    affidavit of the said two proposers. The Returning Officer in fact<\/p>\n
    followed the prudent course by accepting the written complaints<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                       30<\/span><\/p>\n
    and their affidavits. Indeed he would have been entitled to and<\/p>\n
    justified in insisting   upon the said two proposers filing written<\/p>\n
    complaints, or even affidavits.\n<\/p>\n
    37.        It was also submitted that for the same reason the<\/p>\n
    Returning Officer was not entitled to compare the signatures of the<\/p>\n
    said two proposers. As I stated earlier, it was the Petitioner who<\/p>\n
    requested the records of the Municipal Council of Mangalwedha to<\/p>\n
    be produced to ascertain the genuineness or otherwise of the<\/p>\n
    signatures of the said two proposers. The Petitioner has denied<\/p>\n
    the same.     It would make no difference. Even if the Returning<\/p>\n
    Officer did so on his own, I would not consider it objectionable.\n<\/p>\n
    Indeed, it was perfectly valid and reasonable for him to have done<\/p>\n
    so. Section 36(2) entitles him to make such summary inquiry as<\/p>\n
    he thinks necessary. Where the genuineness of a signature is in<\/p>\n
    question in an investigation under Section 36(2) the Returning<\/p>\n
    Officer is entitled to compare the same with the admitted<\/p>\n
    signatures of a person. This is recognized as one of the modes of<\/p>\n
    ascertaining the genuineness of a signature even in a trial under<\/p>\n
    the Indian Evidence Act. In a summary procedure this mode<\/p>\n
    cannot be objected to especially where the decision is not based<\/p>\n
    solely thereon. Calling for the admitted signatures of a person<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                      31<\/span><\/p>\n
    whose signature is disputed is perfectly valid. It establishes the<\/p>\n
    desire of the Returning Officer to ascertaining the genuineness of<\/p>\n
    the signatures of the said two proposers. Section 36(2) does not<\/p>\n
    bar this course adopted by the Returning Officer.\n<\/p>\n
    38.       There is nothing in the Act that prohibits as a matter of<\/p>\n
    law the course adopted by the Returning Officer in permitting the<\/p>\n
    presence of the said two proposers at the inquiry, entertaining the<\/p>\n
    written complaints and the affidavits filed by them and considering<\/p>\n
    the same and comparing their disputed signatures with the<\/p>\n
    admitted signatures. In the facts of the present case, this course<\/p>\n
    adopted by him was in fact fair and proper. That Section 36(2)<\/p>\n
    requires a summary inquiry does not prohibit a Returning Officer<\/p>\n
    from adopting this approach. Section 36 does not limit the extent<\/p>\n
    of the inquiry if the same can be managed            within the time<\/p>\n
    constraints imposed by Section 36.\n<\/p>\n
              If despite the time constraint, which I will refer to later,<\/p>\n
    within which the Returning Officer is to give his decision on an<\/p>\n
    objection, he is able to consider material even in addition to or<\/p>\n
    excess of evidence that may be sufficient to arrive at a decision<\/p>\n
    there can hardly be any grievance against the same. So long as<\/p>\n
    the evidence is relevant, I do not see by what process of reasoning<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                      32<\/span><\/p>\n
    the reliance thereon can be objected to. I can understand a party<\/p>\n
    raising a grievance against a Returning Officer basing his decision<\/p>\n
    upon no evidence or in a given case even upon inadequate<\/p>\n
    evidence.     I cannot however understand a grievance that<\/p>\n
    additional evidence though relevant, was relied upon.\n<\/p>\n
    39.         In the circumstances, Issue no.3 is answered in the<\/p>\n
    negative.\n<\/p>\n
          Re. Issue No.2: Whether the Returning            Officer<\/p>\n
                          committed breach of the provisions of
\n                          Sub-section (1) of Section 36 of the
\n                          Representation of the People Act,
\n                          1951 by entertaining Petitioner’s two
\n                          proposers namely; Sau. Jaymala<\/p>\n
                          Purnanand      Mhetre     and     Sharif<\/p>\n
                          Mohammad Badshah Sutar personally
\n                          at the time and place of scrutiny of the
\n                          nomination and by further accepting
\n                          and relying on their Affidavits and<\/p>\n
                          written complaints, as alleged by the
\n                          petitioner ?\n<\/p>\n
    40.         Mr. Patil submitted that though under Section 36(1) of<\/p>\n
    the said Act, at the time of scrutiny of nominations only the<\/p>\n
    candidate with his election agents, one of his proposers and one<\/p>\n
    other person duly authorised in writing by the candidate and no<\/p>\n
    other persons, are entitled to attend the scrutiny of the<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                           33<\/span><\/p>\n
    nominations. The said two proposers were physically present<\/p>\n
    before the Returning Officer at the time of scrutiny and the<\/p>\n
    Returning Officer entertained their pleas and contentions and also<\/p>\n
    their written complaints and affidavits.      In    view thereof, he<\/p>\n
    submitted that the entire inquiry conducted by the Returning<\/p>\n
    Officer is vitiated and, consequently, the rejection of the<\/p>\n
    Petitioner’s nomination is illegal.\n<\/p>\n
    41.
\n               I have held earlier while dealing with Issue no.2 that the<\/p>\n
    Returning Officer was entirely justified in considering the written<\/p>\n
    representations and affidavits of the said two proposers and<\/p>\n
    entertaining their presence and their pleas and contentions. If I<\/p>\n
    am right in this regard, this issue too must necessarily be<\/p>\n
    answered in the negative.\n<\/p>\n
    42.        Section 36(1) bars the attendance of all but the four<\/p>\n
    persons mentioned therein at the place at the time fixed for the<\/p>\n
    scrutiny of the nominations. The provision correctly construed, is<\/p>\n
    to the effect that the bar to the attendance of all but the said four<\/p>\n
    persons is for the purpose of the scrutiny.                 The words<\/p>\n
    “…………..may attend at such time and place as the returning<\/p>\n
    officer may appoint;……….” clarify this position. The words “such<\/p>\n
    time and place” must be read in conjunction with the opening part<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                       34<\/span><\/p>\n
    of sub-section (1): “On the date fixed for the scrutiny of<\/p>\n
    nominations under Section 30…………”.\n<\/p>\n
              So read, it is apparent that the bar to any other person<\/p>\n
    attending at such time and place refers to the time and place for<\/p>\n
    the scrutiny. In other words, the bar to any other person attending<\/p>\n
    the venue is for the purpose of the scrutiny.\n<\/p>\n
    43.       It is nobody’s case that the said two proposers or any<\/p>\n
    other person in addition to those permitted under Section 36(1)<\/p>\n
    attended the venue for the scrutiny.         The evidence on record<\/p>\n
    indicates that their attendance before the Returning Officer albeit<\/p>\n
    at the venue, was for the purpose of the said inquiry, which was<\/p>\n
    conducted by the Returning Officer.\n<\/p>\n
    44.       Neither the Act nor the rules thereunder nor even the<\/p>\n
    handbook for Returning Officers provides for separate venues for<\/p>\n
    the scrutiny and for the inquiry which a Returning Officer may<\/p>\n
    hold.\n<\/p>\n
    45.       The limitation to the number of persons entitled to be<\/p>\n
    present for the purpose of scrutiny is to ensure that there are no<\/p>\n
    problems by way of overcrowding or otherwise at the time of<\/p>\n
    scrutiny, which indeed, is an important part of any election. But,<\/p>\n
    the limitation is for the purpose of scrutiny and not for the purpose<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                     35<\/span><\/p>\n
    of or in connection with an inquiry that may be held by the<\/p>\n
    Returning Officer under sub-section (2) of Section 36.              If an<\/p>\n
    objection is raised and the Returning Officer for the purpose of the<\/p>\n
    inquiry, desires the attendance of any person or to question or<\/p>\n
    hear any person or persons, the presence of such person or<\/p>\n
    persons is not for the purpose of the scrutiny but for the purpose<\/p>\n
    of enabling the Returning Officer to take a decision in the matter.\n<\/p>\n
    That it is so at the same venue would not necessarily make a<\/p>\n
    difference for such persons do not attend the venue for the<\/p>\n
    purpose of scrutiny but they do so in connection with the inquiry<\/p>\n
    and at the direction or with the leave of the Returning Officer.\n<\/p>\n
    They do so not for the purpose of examining the nomination<\/p>\n
    papers but in connection with the inquiry into the objection held by<\/p>\n
    the Returning Officer.\n<\/p>\n
    46.         In the circumstances, Issue no.2 is answered in the<\/p>\n
    negative.\n<\/p>\n
          Re. Issue No.1: Whether the Petitioner proves that his
\n                          nomination for election to the Local
\n                          Authorities Constituency, Solapur of
\n                          the Maharashtra Legislative Council
\n                          Biennial    elections    2003    was
\n                          improperly rejected by the Returning
\n                          Officer ?\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                      36<\/span><\/p>\n
          Re. Issue No.4: Whether the Petitioner proves that<\/p>\n
                          result of the election in question, in so
\n                          far as it concerns the returned<\/p>\n
                          candidate i.e. Respondent, herein,
\n                          has been materially affected by non-\n<\/p>\n
                          compliance with the provisions of Sub-\n<\/p>\n
                          sections (1) and (2) of Section 36 of<\/p>\n
                          the Representation of the People Act,
\n                          1951 ?<\/p>\n
          Re. Issue No.5: Whether      the    election    of   the<\/p>\n
                          Respondent as member of the
\n                          Maharashtra Legislative Council from<\/p>\n
                          the Local Authorities Constituency,
\n                          Solapur     and     the    Maharashtra
\n                          Legislative Council Biennial Election,<\/p>\n
                          2003 is void and liable to be set aside
\n                          on the grounds provided under clause\n<\/p>\n
                          (c) of sub-section (1) of Section 100 or
\n                          both of the Representation of the<\/p>\n
                          People Act, 1951 ?\n<\/p>\n
    47.       In respect of these issues Mr. Patil submitted firstly that<\/p>\n
    the order passed by the Returning Officer is in violation of Section<\/p>\n
    36(6) which makes it mandatory for the Returning Officer in the<\/p>\n
    event of his rejecting a nomination paper to record in writing a<\/p>\n
    brief statement of his reasons for such rejection. He submitted<\/p>\n
    that the impugned order contains only the conclusions but not the<\/p>\n
    reasons for the decision rejecting the nomination paper of the<\/p>\n
    Petitioner. Mr. Patil further submitted that the Returning Officer<\/p>\n
    had failed to consider the relevant material, evidence and<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                            37<\/span><\/p>\n
    statements during the inquiry.           He submitted that the decision<\/p>\n
    making process was therefore vitiated.\n<\/p>\n
              Mr. Patil submitted that the order of the Returning<\/p>\n
    Officer is therefore void and that the election of the Respondent is<\/p>\n
    also accordingly void and liable to be set aside under Section 100<\/p>\n
    (1)(c) and (d)(iv) which read as under :-\n<\/p>\n
                    “100.  Grounds for declaring election to be<\/p>\n
                    void.-(1) Subject to the provisions of sub-\n<\/p><\/blockquote>\n
                    section (2), if the High Court is of opinion-\n<\/p><\/blockquote>\n
                       (a) …………………………………………………….\n<\/p><\/blockquote>\n
                       (b) …………………………………………………….\n<\/p><\/blockquote>\n
                       (c) that any nomination has                               been\n                             improperly rejected, or\n<\/pre>\n
                      (d) that the result of the election, insofar
\n                             as it concerns a returned candidate,<\/p>\n
                             has been materially affected-\n<\/p><\/blockquote>\n
                      (iv) by any non-compliance with the
\n                             provisions of the Constitution of this
\n                             Act or of any rules or orders made
\n                             under this Act,<\/p>\n
                              [the High Court] shall declare the
\n                              election of the returned candidate to
\n                              be void.]”\n<\/p><\/blockquote>\n
    48.       I am in agreement with Mr. Patil’s submission that<\/p>\n
    Section 36(6) makes it mandatory for the Returning Officer to<\/p>\n
    furnish reasons in the event of his deciding to reject the<\/p>\n
    nomination paper of a candidate. The question is whether in the<\/p>\n
    present case the Returning Officer furnished reasons and whether<\/p>\n
                                                                   ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                       38<\/span><\/p>\n
    the Returning Officer considered the relevant material during the<\/p>\n
    inquiry before coming to his decision, rejecting the nomination<\/p>\n
    paper of the Petitioner.\n<\/p>\n
    49.         Two aspects of the decision making process must be<\/p>\n
    considered in this case.       Firstly, whether the inquiry officer<\/p>\n
    afforded an opportunity to the concerned parties to present their<\/p>\n
    case and whether the Returning Officer considered the relevant<\/p>\n
    material.\n<\/p>\n
                 Secondly, whether the Returning Officer furnished<\/p>\n
    reasons for his decision as required by Section 36(6).\n<\/p>\n
    50.         As far the first aspect is concerned, I am satisfied that<\/p>\n
    the Returning Officer complied with the requirements of law and<\/p>\n
    afforded all the parties a fair opportunity of presenting their rival<\/p>\n
    cases. The said Dilip Chougule, who was one of the candidates<\/p>\n
    had objected in writing to the nomination of the Petitioner alleging<\/p>\n
    that the said two proposers had not signed the Petitioner’s<\/p>\n
    nomination and that their signatures were not genuine. The said<\/p>\n
    two proposers also filed their written complaints and affidavits.\n<\/p>\n
    The Returning Officer decided to consider the same as well as<\/p>\n
    considered the presence of the said two proposers. I have earlier<\/p>\n
    held that nothing prevented the Returning Officer from doing so in<\/p>\n
    law.\n<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                      39<\/span><\/p>\n
              Having done so, the Returning Officer permitted the<\/p>\n
    Petitioner to file his own affidavit, the affidavit of five other<\/p>\n
    proposers and the affidavit of the said Ratan Govind Pandit, who<\/p>\n
    is the brother of one of the said two proposers viz. Sau. Jaymala<\/p>\n
    Purnanand Mhetre.\n<\/p>\n
    51.       The Petitioner confirmed that he filed these affidavits. It<\/p>\n
    is not his case that he was prevented from doing so by the<\/p>\n
    Returning Officer. Mr. Patil took me through various parts of the<\/p>\n
    record to establish that the said affidavits had been filed before the<\/p>\n
    Returning Officer. I do not think there can be any dispute in this<\/p>\n
    regard. The affidavits admittedly were filed before the Returning<\/p>\n
    Officer. This is clear from the order of the Returning Officer itself.\n<\/p>\n
    Indeed, Mr.Sawant did not dispute this either.                      In the<\/p>\n
    circumstances, it is not necessary to set out the references relied<\/p>\n
    upon by Mr. Patil to establish the same.\n<\/p>\n
    52.       The Petitioner also stated in his evidence that the<\/p>\n
    Returning Officer had adjourned the proceedings with respect to<\/p>\n
    scrutiny to 3.45 p.m. and in the meantime called for the record<\/p>\n
    from the Mangalwedha Municipal Council. He further stated that in<\/p>\n
    the afternoon the Returning Officer “went on verifying the<\/p>\n
    signatures   of   these   two   proposers    from      the     record        of<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                      40<\/span><\/p>\n
    Mangalwedha Municipal Council and made a comparison of the<\/p>\n
    signature of the said two proposers”.\n<\/p>\n
                The Petitioner’s contention that this procedure was<\/p>\n
    wrong, is another matter, which I have already deal with. What is<\/p>\n
    important for the present purpose is to note that the Returning<\/p>\n
    Officer did in fact examine the record which I have held to be<\/p>\n
    relevant.\n<\/p>\n
    53.
\n                In paragraph 18 of his cross-examination, the Petitioner<\/p>\n
    stated that he was represented by three Advocates who were<\/p>\n
    allowed to argue on his behalf before the Returning Officer for<\/p>\n
    about 25 minutes.       He further stated that the affidavits and<\/p>\n
    representations were placed before the Returning Officer and the<\/p>\n
    submissions were heard by the Returning Officer who thereafter<\/p>\n
    gave his decision on the same day.\n<\/p>\n
    54.         Thus,   the Returning Officer had before him the said<\/p>\n
    affidavits, the record of the Mangalwedha Municipal Council, the<\/p>\n
    presence of the concerned parties and he heard arguments of not<\/p>\n
    merely the parties but their Advocates as well. Considering the<\/p>\n
    nature of the proceedings, this was sufficient to comply with the<\/p>\n
    provisions of law to enable the Returning Officer to come to a<\/p>\n
    conclusion regarding the validity of the Petitioner’s nomination<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                        41<\/span><\/p>\n
    forms and the genuineness of the signatures of the said two<\/p>\n
    proposers. It is significant to note that it is not the Petitioner’s case<\/p>\n
    that he wanted to produce any other evidence but was not given<\/p>\n
    an opportunity of doing so.\n<\/p>\n
    55.        Mr. Patil submitted that the Petitioner had also made an<\/p>\n
    application before the Returning Officer wherein he had alleged<\/p>\n
    that the affidavit of the said two proposers had been got made by<\/p>\n
    the Respondent through an Advocate who was also a notary and<\/p>\n
    that the said Advocate has notarized the said affidavits and<\/p>\n
    submitted the same to the Returning Officer.             The Petitioner<\/p>\n
    alleged that the notary’s record does not bear the signatures of the<\/p>\n
    said two proposers and that the notary did not have a copy of the<\/p>\n
    said affidavit. The Petitioner therefore stated that it would be just<\/p>\n
    that the said Notary be directed to attend with the record, including<\/p>\n
    a copy of the said affidavits. This request was not acceded to. He<\/p>\n
    submitted therefore that the Returning Officer did not even<\/p>\n
    consider the relevant evidence.\n<\/p>\n
    56.        The Returning Officer would certainly have been justified<\/p>\n
    in calling for the records of the notary. I do not however think that<\/p>\n
    his not having done so, vitiates the decision making process.\n<\/p>\n
    Strictly, it was not necessary for the affidavits of the parties to be<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                       42<\/span><\/p>\n
    notarized or even for their affidavits being filed. The Returning<\/p>\n
    Officer could well have acted on the basis of even the written<\/p>\n
    complaints especially in view of the presence of the said two<\/p>\n
    proposers, whose signatures were in question.              He obviously<\/p>\n
    considered the material before him adequate in view of the<\/p>\n
    presence of the affiant themselves and did not consider the<\/p>\n
    presence of the notary necessary for the purpose of coming to his<\/p>\n
    conclusion which he was bound to in a very short time. I do not<\/p>\n
    find this decision of the Returning Officer by itself sufficient to hold<\/p>\n
    that he excluded relevant material vitiating       the entire decision<\/p>\n
    making process.\n<\/p>\n
    57.       We have seen thus far that the Returning Officer<\/p>\n
    considered evidence which was relevant and did not consider any<\/p>\n
    evidence which was irrelevant. I have also noted that adequate<\/p>\n
    opportunity had been granted to all the parties for presenting their<\/p>\n
    respective cases.\n<\/p>\n
    58.       Mr. Patil however contended further that the impugned<\/p>\n
    order does not contain any reasons. He submitted therefore that<\/p>\n
    the Petition ought to be allowed on this ground alone.\n<\/p>\n
    59.       No doubt, reasons for a decision under Section 36(6)<\/p>\n
    are necessary.       However, the qualitative and quantitative<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                         43<\/span><\/p>\n
    adequacy of reasons of a quasi-judicial order must depend upon<\/p>\n
    the nature of the proceeding. The extent of reasons and the depth<\/p>\n
    of consideration to be reflected in a quasi-judicial order, must of<\/p>\n
    necessity depend upon the nature of the proceeding.\n<\/p>\n
               In Jayrajbhai   Jayantibhai   Patel   v.   Anilbhai   Nathubhai<\/p>\n
    Patel   &   Ors.   (2006)   8   Supreme   Court   Cases,   200,  the Supreme<\/p>\n
    Court held :-\n<\/p>\n
                      “12. Article 226 of the Constitution is de-\n<\/p><\/blockquote>\n
                      signed to ensure that each and every authori-
\n                      ty in the State, including the State, acts bona
\n                      fide and within the limits of its power. Howev-
\n                      er, the scope of judicial review in administra-\n<\/p><\/blockquote>\n
                      tive matters has always been a subject-matter
\n                      of debate despite a plethora of case-law on
\n                      the issue. Time and again attempts have
\n                      been made by the courts to devise or craft
\n                      some norms, which may be employed to as-\n<\/p><\/blockquote>\n
                      sess whether an administrative action is justi-
\n                      ciable or not. But no uniform rule has been or
\n                      can be evolved to test the validity of an ad-\n<\/p><\/blockquote>\n
                      ministrative action or decision because the
\n                      extent and scope of judicial scrutiny depends
\n                      upon a host of factors, like the nature of the
\n                      subject-matter, the nature of the right affect-
\n                      ed, the character of the legal and constitution-\n<\/p><\/blockquote>\n
                      al provisions applicable, etc. While appreciat-
\n                      ing the inherent limitations in exercise of the
\n                      power of judicial review, the judicial quest has
\n                      been to find and maintain a right and delicate
\n                      balance between the administrative discretion
\n                      and the need to remedy alleged unfairness in
\n                      the exercise of such discretion.”\n<\/p><\/blockquote>\n
                      16. In State of U.P. v. Johri Mal (2004) 4 SCC,
\n                      714  this Court has observed thus: (SCC
\n                      p.730, para 28)
\n                          “28. The scope and extent of power of the
\n                      judicial review of the High Court contained in
\n                      Article 226 of the Constitution of India would
\n                      vary from case to case, the nature of the or-
\n                      der, the relevant statute as also the other rel-
\n                      evant factors including the nature of power
\n                      exercised by the public authorities, namely,<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                      44<\/span><\/p>\n
                    whether the power is statutory, quasi-judicial
\n                    or administrative. The power of judicial review
\n                    is not intended to assume a supervisory role<\/p>\n
                    or don the robes of the omnipresent. The
\n                    power is not intended either to review gover-
\n                    nance under the rule of law nor do the courts<\/p>\n
                    step into the areas exclusively reserved by
\n                    the suprema lex to the other organs of the
\n                    State. Decisions and actions which do not
\n                    have adjudicative disposition may not strictly
\n                    fall for consideration before a judicial review<\/p>\n
                    court.”\n<\/p><\/blockquote>\n
    60.       A consideration of Mr. Patil’s submission must therefore<\/p>\n
    be prefaced with an analysis of the proceedings involved in the<\/p>\n
    decision making process under Section 36(6).\n<\/p>\n
    61.       Proceedings such as these, by virtue of Section 36 are<\/p>\n
    summary in nature.       As submitted by Mr. Patil himself, the<\/p>\n
    Returning Officer discharges a quasi-judicial function.\n<\/p>\n
    62.       Mr.Sawant’s submission that the provisions of Section<\/p>\n
    36(6) must be read together with the other provisions of the Act as<\/p>\n
    a whole and not in isolation is well founded.      The quality and<\/p>\n
    extent of the decision taken by the Returning Officer under Section<\/p>\n
    36(6) must be judged in the light of the importance and enormity of<\/p>\n
    the tasks required of the Returning Officer with such constraints of<\/p>\n
    time. As pointed out by Mr. Sawant in great detail, the Returning<\/p>\n
    Officer has to scrutinize a number of things, ensure compliance of<\/p>\n
    various requirements and to perform diverse duties within a short<\/p>\n
    span of merely three days.\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                     45<\/span><\/p>\n
             Section 30 of the said Act reads thus :-\n<\/p>\n
                        “30. Appointment of dates for nomina-
\n                   tions, etc.– As soon as the notification calling<\/p>\n
                   upon a constituency to elect a member or
\n                   members is issued, the Election Commission
\n                   shall, by notification in the Official Gazette,
\n                   appoint–\n<\/p><\/blockquote>\n
                        (a) the last date for making nominations,
\n                   which shall be the seventh day after the date
\n                   of publication of the first-mentioned notifica-
\n                   tion or, if that day is a public holiday, the next<\/p>\n
                   succeeding day which is not a public holiday;\n<\/p><\/blockquote>\n
                      (b) the date for the scrutiny of nominations,<\/p>\n
                   which shall be the day immediately following
\n                   the last date for making nominations or, if that<\/p>\n
                   day is a public holiday, the next succeeding
\n                   day which is not a public holiday;\n<\/p><\/blockquote>\n
                        (c) the last date for the withdrawal of can-
\n                   didatures, which shall be the second day after<\/p>\n
                   the date for the scrutiny of nominations or, if
\n                   that day is a public holiday, the next succeed-\n<\/p><\/blockquote>\n
                   ing day which is not a public holiday;\n<\/p><\/blockquote>\n
                       (d) the date or dates on which a poll shall,
\n                   if necessary, be taken, which or the first of
\n                   which shall be a date not earlier than the<\/p>\n
                   [fourteenth day] after the last date for the
\n                   withdrawal of candidatures; and\n<\/p><\/blockquote>\n
                      (e) the date before which the election shall
\n                   be completed.”\n<\/p><\/blockquote>\n
    63.      A conjoint reading of Sections 30 and 36 and the various<\/p>\n
    provisions of the Act indicate that the decision of the Returning<\/p>\n
    Officer on an application is to be given within a period of one or<\/p>\n
    two days. It is in this context that one must examine and consider<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                      46<\/span><\/p>\n
    the matter.\n<\/p>\n
    64.       In the present case, for instance, as is evidenced by the<\/p>\n
    notice of election itself, the nomination papers were to be delivered<\/p>\n
    by the candidates upto 3.00 p.m. on 14.11.2003. The scrutiny was<\/p>\n
    to be taken up at 11.00      a.m. On 15.11.2003.        The notice of<\/p>\n
    withdrawal was permitted to be delivered before 3.00 p.m. on<\/p>\n
    17.11.2003. The decision to any objection was to be given by the<\/p>\n
    next day at the latest.\n<\/p>\n
    15.11.2003 itself.\n<\/p>\n
                                In the present case, it was given on<\/p>\n
              It is not really necessary to enumerate the functions to<\/p>\n
    be performed by the Returning Officer between the time of scrutiny<\/p>\n
    and the time of his decision. Suffice it to note that for instance, in<\/p>\n
    this very case, he had to satisfy himself under Section 33(4) that<\/p>\n
    the names and electoral roll numbers of the candidates and their<\/p>\n
    proposers, who were twenty in number, as entered in the<\/p>\n
    nomination paper, were the same as those entered in the electoral<\/p>\n
    rolls. He had therefore to check the records of twenty proposers.\n<\/p>\n
    Under Section 36(2) he has to examine the nomination papers for<\/p>\n
    various other aspects including whether there has been a failure to<\/p>\n
    comply with a the provisions of Sections 33 or 34.\n<\/p>\n
    65.       Section 36(6) emphasizes that the Returning Officer<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                       47<\/span><\/p>\n
    shall record in writing “a brief statement of his reasons” for such<\/p>\n
    rejection. The use of the words “a brief statement” is obviously<\/p>\n
    deliberate. The extent of reasons to be recorded in a proceeding<\/p>\n
    under Section 36 of the said Act would differ, for instance, from the<\/p>\n
    decision of a Disciplinary Committee, whether the decision of the<\/p>\n
    Disciplinary Committee is subject to an internal appeal or not.\n<\/p>\n
    There are atleast two reasons for this.\n<\/p>\n
    (A).\n<\/p>\n
              Firstly, in a disciplinary proceeding there are no time<\/p>\n
    constraints atleast to the extent present in the said Act.             The<\/p>\n
    Disciplinary Authority must consider the entire evidence before<\/p>\n
    him. Often the Disciplinary Authority is bound to permit the parties<\/p>\n
    to lead evidence. The discretion conferred on a Returning Officer<\/p>\n
    under Section 36(2) is greater. He is entitled to hold the summary<\/p>\n
    inquiry as he thinks necessary.\n<\/p>\n
              In Virendra Kumar Satyawadi v. The State of Punjab, AIR<\/a><\/p>\n
    1956, Supreme Court, 153 the Supreme Court held that the power<\/p>\n
    under Section 32 though judicial in character, authorises the<\/p>\n
    Returning Officer to come to a decision “after such summary<\/p>\n
    enquiry, if any, as he thinks necessary”. The Supreme Court held<\/p>\n
    that this means that the parties have no right to insist on producing<\/p>\n
    evidence which    they may desire to adduce in support of their<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                               48<\/span><\/p>\n
    case.\n<\/p>\n
    (B).      Secondly, the order of the Disciplinary Authority or even<\/p>\n
    the Appellate Authority is subject to judicial review but only on a<\/p>\n
    limited basis. The judicial review is not a fresh trial. Normally, it is<\/p>\n
    the decision making process and not the decision itself that is to<\/p>\n
    be scrutinized. Even the award of an arbitrator can be set aside<\/p>\n
    only on the limited grounds under Section 30 of the Indian<\/p>\n
    Arbitration Act, 1940 or Section 34 of the Arbitration and<\/p>\n
    Conciliation Act, 1996. On the other hand, a petition under the<\/p>\n
    said Act is an original proceeding in which all contentions of the<\/p>\n
    parties are kept open. In Birad Mal Singhvi v. Anand Purohit,<\/a> 1988<\/p>\n
    (Supp) Supreme Court Cases, 604 the Supreme Court held :-\n<\/p>\n
                     “10. ……………………………………………………..
\n                     ……………………………………………………………….
\n                     But his decision is not final. In an election pe-\n<\/p><\/blockquote>\n
                     tition it is open to an election petitioner to
\n                     place cogent evidence before the High Court
\n                     to show that the candidate whose nomination
\n                     paper was rejected had in fact attained the
\n                     age of 25 years on the relevant date. It is
\n                     open to the High Court to take a final decision<\/p>\n
                     in the matter notwithstanding the order of the
\n                     Returning Officer rejecting the nomination pa-
\n                     per. If on the basis of the material placed be-
\n                     fore the High Court it is proved that the candi-
\n                     date whose nomination paper had been re-
\n                     jected was qualified to contest the election it
\n                     is open to the High Court to set aside the
\n                     election. Enquiry during scrutiny is summary
\n                     in nature as there is no scope for any elabo-
\n                     rate enquiry at that stage. Therefore it is open
\n                     to a party to place fresh or additional material<\/p>\n
                                                                        ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                      49<\/span><\/p>\n
                    before the High Court to show that the return-
\n                    ing officer’s order rejecting the nomination pa-\n<\/p><\/blockquote>\n
                    per was improper. It should be borne in mind
\n                    that the proceedings in an election petition
\n                    are not in the nature of appeal against the or-\n<\/p><\/blockquote>\n
                    der of the returning officer. It is an original
\n                    proceeding. In the instant case it was open to
\n                    the respondent election petitioner to place
\n                    material before the High Court to show that
\n                    the two candidates were qualified and their<\/p>\n
                    nomination paper was improperly rejected.”<\/p><\/blockquote>\n
              In my opinion therefore, the reasons required to be<\/p>\n
    recorded under Section 36(6) would be far less in terms both<\/p>\n
    quantitatively as well as qualitatively than in case of certain other<\/p>\n
    quasi judicial proceedings.\n<\/p>\n
    66.       The Returning Officer admittedly examined the record of<\/p>\n
    the Municipal Council of Mangalwedha in detail. He compared the<\/p>\n
    disputed signatures of the said two proposers on the Petitioner’s<\/p>\n
    nomination with their admitted signatures in the record of the<\/p>\n
    Municipal Council of Mangalwedha.       He found that there were<\/p>\n
    certain differences in the two sets of signatures.       He however<\/p>\n
    observed that it was not possible to arrive at a conclusion on this<\/p>\n
    basis.\n<\/p>\n
    67.       I do not read the order as rejecting this basis altogether.\n<\/p>\n
    I read the order to mean that the differences in the two sets of<\/p>\n
    signatures by themselves were not sufficient to arrive at a<\/p>\n
    conclusion.\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                      50<\/span><\/p>\n
    68.       Indeed, the Returning Officer could well have held that<\/p>\n
    in view of the summary nature of the inquiry that he is expected to<\/p>\n
    hold, the differences in the two sets of signatures albeit slight, was<\/p>\n
    sufficient to reject the Petitioner’s nomination. He however did not<\/p>\n
    do so.\n<\/p>\n
    69.       What appears to have weighed with the Returning<\/p>\n
    Officer is that the said two proposers appeared before him in<\/p>\n
    person and submitted their affidavits and that their identity<\/p>\n
    therefore was not in dispute. The Returning Officer therefore was<\/p>\n
    faced with the word of the said two proposers against the word of<\/p>\n
    the Petitioner, the other five proposers and the brother of one of<\/p>\n
    the said two proposers. I appreciate that there is no analysis of<\/p>\n
    the differing affidavits.   In these circumstances, the Returning<\/p>\n
    Officer could well have believed the Petitioner’s case. He however<\/p>\n
    chose to believe the case of the said two proposers who denied<\/p>\n
    their signatures. The Returning Officer being impressed by the<\/p>\n
    presence of the said two proposers was strongly commented upon<\/p>\n
    by Mr. Patil.   Mr. Patil submitted that even the Petitioner was<\/p>\n
    personally present and there was no reason therefore why the<\/p>\n
    Returning Officer chose to accept the word of the said two<\/p>\n
    proposers. That he may well have adopted this approach with<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                     51<\/span><\/p>\n
    equal justification, would not warrant my order holding that his<\/p>\n
    rejection of the Petitioner’s nomination was improper. In that case<\/p>\n
    the Respondent could with equal force have raised the same<\/p>\n
    contention.\n<\/p>\n
    70.       Added to these facts is that the Returning Officer was of<\/p>\n
    the view that the onus was upon the Petitioner to prove the<\/p>\n
    genuineness of the signatures of the said two proposers. This<\/p>\n
    view cannot be faulted. The initial burden was on the Petitioner to<\/p>\n
    prove that the signatures were of the said two proposers. The<\/p>\n
    Returning Officer in these circumstances held that the Petitioner<\/p>\n
    could not produce any evidence which would have conclusively<\/p>\n
    proved that the disputed proposers had originally signed his<\/p>\n
    nomination papers but changed their mind later on.\n<\/p>\n
    71.       In the circumstances, it is difficult to accept that the<\/p>\n
    order of the Returning Officer does not contain any reasons.\n<\/p>\n
    Indeed, he may not have explained in great detail why he<\/p>\n
    preferred one set of affidavits to the other. He may not have in<\/p>\n
    any detail discussed the contents of the said affidavits. However,<\/p>\n
    considering the nature of requirements under Section 36(6) I am of<\/p>\n
    the view that the order of the Returning Officer contained<\/p>\n
    adequate reasons.\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                     52<\/span><\/p>\n
    72.       In Mohd. Yasin Shah v. Ali Akbar Khan<\/a> (1977) 2 Supreme<\/p>\n
    Court Cases, 23 the Supreme Court while dealing with Section 47 of<\/p>\n
    the Jammu and Kashmir Representation of People Act, 1957,<\/p>\n
    held:-\n<\/p>\n
                    “It is true that the Returning Officer has not
\n                    given any clear finding on this point, but
\n                    Section 47 of the Act does not require a well
\n                    reasoned decision. All that is necessary is<\/p>\n
                    that the Returning Officer should apply his
\n                    mind and determine the question in a<\/p>\n
                    summary manner.”<\/p><\/blockquote>\n
              The opening part of Section 47(2) and Sub-section (6) of<\/p>\n
    Section 47 of The Jammu & Kashmir Representation of the<\/p>\n
    People Act, 1957 are identical to the opening part of Section 36(2)<\/p>\n
    and Sub-section (6) of Section 36 of the said Act.\n<\/p>\n
    73.       The Returning Officer also set out the arguments of the<\/p>\n
    learned counsel appearing on behalf of the Petitioner and the<\/p>\n
    Respondents.     The third submission of the learned counsel<\/p>\n
    appearing on behalf of the Petitioner before the Returning Officer<\/p>\n
    was that the affidavit filed by the said two proposers does not have<\/p>\n
    any evidentiary value.\n<\/p>\n
              Mr.Sawant submitted that the argument was in fact<\/p>\n
    limited to the Petitioner’s contention in grounds `C’ and `D’ of the<\/p>\n
    petition viz. that in a proceeding under Section 36(2) it would not<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                      53<\/span><\/p>\n
    be open to the Returning Officer to consider the said affidavits at<\/p>\n
    all. In other words, according to him, before the Returning Officer<\/p>\n
    the affidavits filed by and in support of the Petitioner were not even<\/p>\n
    relied upon. However, in view of my above conclusions, it is not<\/p>\n
    necessary to express any opinion in this regard.\n<\/p>\n
    74.       Mr. Patil submitted that there was no reason for the<\/p>\n
    Petitioner to have forged the signatures of the said two proposers.\n<\/p>\n
    The Petitioner could easily have obtained the signatures of ten<\/p>\n
    persons on his nomination form.          The submission definitely<\/p>\n
    sounds logical. However, the merits of the matter have not been<\/p>\n
    considered in view of the manner in which this matter has<\/p>\n
    proceeded.\n<\/p>\n
    75.       While I intend dismissing the petition, I wish to make it<\/p>\n
    expressly clear that my decision to dismiss this petition ought not<\/p>\n
    to be construed as my having disbelieved the Petitioner’s case on<\/p>\n
    facts at all.   In other words, this judgment ought not to be<\/p>\n
    construed as my having disbelieved the Petitioner’s case that the<\/p>\n
    said two proposers had in fact signed his nomination papers or my<\/p>\n
    having believed the Respondent’s case or the case of the said two<\/p>\n
    proposers that they had not signed the Petitioner’s nomination<\/p>\n
    forms.\n<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                        54<\/span><\/p>\n
    76.       Mr.Sawant submitted that the petition ought to be<\/p>\n
    dismissed on the ground of non-joinder of necessary parties as all<\/p>\n
    the candidates had not been impleaded.\n<\/p>\n
    77.       The submission is not well founded. Sections 82 and 84<\/p>\n
    of the said Act read as under :-\n<\/p>\n
                    “82.     Parties   of   the   petition.-A petitioner
\n                    shall join as respondents to his petition-\n<\/p><\/blockquote>\n
                           (a) where the petitioner, in addition to<\/p>\n
                    claiming declaration that the election of all or
\n                    any of the returned candidates is void, claims
\n                    a further declaration that he himself or any<\/p>\n
                    other candidate has been duly elected, all the
\n                    contesting candidates other than the
\n                    petitioner, and where no such further
\n                    declaration is claimed, all the returned
\n                    candidates; and<\/p>\n<\/blockquote>\n
                          (b) any other candidate against whom
\n                    allegations of any corrupt practice are made
\n                    in the petition.”<\/p><\/blockquote>\n
              In the present petition, the further declaration that the<\/p>\n
    Petitioner himself or any other candidate has been duly elected<\/p>\n
    has not been sought. In that event, the plain language of Section<\/p>\n
    82 requires the Petitioner to join only all the returned candidates.\n<\/p>\n
    The Respondent is the only returned candidate.               Mr.Sawant’s<\/p>\n
    submission is therefore rejected.\n<\/p>\n
    78.       In the circumstances, the petition is dismissed. There<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span>
\n                                     55<\/span><\/p>\n
    shall however be no order as to costs.\n<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 13:51:52 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Uttamrao Shivdas Jankar vs Ranjitsinh Vijaysinh … on 16 September, 2008 Bench: S.J. Vazifdar 1 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, […]<\/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-57091","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nUttamrao Shivdas Jankar vs Ranjitsinh Vijaysinh ... on 16 September, 2008 - 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\/uttamrao-shivdas-jankar-vs-ranjitsinh-vijaysinh-on-16-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Uttamrao Shivdas Jankar vs Ranjitsinh Vijaysinh ... on 16 September, 2008 - 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