Now coming to the issues that are required to be framed. There
can be no gainsaying of the fact that the issues are framed in respect of only
those facts which are alleged by one of the parties and denied or not admitted
by other party, and the issues are to be framed to determine the real
controversy involved in the pleadings of the parties. In so far as the Election
Petitions are concerned, be it either those of local bodies or assembly or
parliament, the Election Petition challenging the elections to the local bodies or
legislature or parliament, the basis requirement or the fundamental
requirement is that the material facts or particulars on the basis of which the
cause of action for filing the Election Petition has arisen must be pleaded .
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11334 OF 2015
ALONG WITH
CIVIL APPLICATION NO.3379 OF 2015
Shri Vijay Waman Deshmukh
Versus
Pune Municipal Corporation
CORAM : R. M. SAVANT, J.
DATE : 29th April 2016
Citation:2016(4) MHLJ 917
1 Rule in both the above Petitions, with the consent of the learned
counsel for the parties made returnable forthwith and heard.
2 The writ jurisdiction of this Court under Article 227 of the
Constitution of India is invoked against the order dated 06/10/2015 passed by
the learned Principal Judge of the Small Causes Court, Pune by which order
the Election Petition being No.9 of 2012 filed by the Respondent No.2 herein
came to be allowed and the Petitioner Shri Vijay Waman Deshmukh in Writ
Petition No.11334 of 2015 (i.e. the Respondent No.4 in the Election Petition)
came to be unseated as a Corporator of the Pune Municipal Corporation from
Ward No.44 B, Hadapsar, Pune.
In so far as Writ Petition No.10730 of 2015 is concerned, the same
has been filed by the Election Petitioner Shri Vijay Zumbar More (i.e. the
Respondent No.2 in Writ Petition No.11334 of 2015), challenging the same
order i.e. the order dated 06/10/2015 in so far as it rejects the prayer of the
said Petitioner of being declared elected from the said ward in place of the
Petitioner in Writ Petition No.11334 of 2015.
The Petitioner in Writ Petition No.11334 of 2015 i.e. Shri Vijay
Waman Deshmukh is the Respondent No.4, and the Respondent No.2 in the
said Writ Petition i.e. Shri Vijay Zumbar More is the Election Petitioner in the
Election Petition No.9 of 2012. The parties would therefore be referred to as
per their nomenclature in the Trial Court. The Petitioner herein i.e. Vijay
Waman Deshmukh would be referred to as the Respondent No.4, and the
Respondent No.2 herein Vijay Zumbar More would be referred to as the
Election Petitioner.
3 The facts giving rise to the filing of the above Petitions, in brief,
can be stated thus :
The elections to the General Body of the Pune Municipal
Corporation were held on 16/02/2012. The Respondent No.4 and the Election
Petitioner contested the elections from Ward No.44 B, Hadapsar, Pune of the
said Pune Municipal Corporation as candidates of their respective parties. It is
an undisputed position that the Respondent No.4 – Vijay Deshmukh was
declared elected from the said ward whereas the Election Petitioner Vijay More
has secured the 2nd highest votes. However, prior thereto the Respondent No.4
had filed his nomination form along with the affidavit as mandated to which
no objection was taken by the Election Petitioner at the time of scrutiny. After
the elections were over the Election Petitioner filed the instant Election Petition
No.9 of 2012 for setting aside the election of the Respondent No.4 on the
ground/grounds mentioned in the said Election Petition. In the context of the
challenge raised in the above Petition it would be apposite to refer to the
averments made in the Election Petition. Paragraphs 6, 7, 8 and 10 of the
Election Petition are material and reproduced herein under for the sake of
ready reference :
“6) It is submitted that Respondent No.4 i.e. Vijay
Wamanrao Deshmukh in the Affidavit of relevant
Criminal character, cases, proceeding and in the
relevant property clumn submitted false contents from
column no.1(1) upto false PAN Card number which is
not his own and also concealed the relevant true
information of his criminal involvement in crime and
property as also the pending Criminal Session Case
No.64 of 1997 lodged against him by Pune Rural
Police and where chargesheet has been filed before
the Hon'ble Sessions Judge, Baramati, Pune wherein
the Respondent No.4 shown as a “Absconding”
accused in the said Session Case un/s 395, 411 of
Indian Penal Code. The said fact was not mentioned
by Respondent No.4 in the said Affidavit purposefully
alongwith nomination application before relevant
authority on oath. On the contrary the Respondent
No.4 in the column and subsequent columns of this
Affidavit stated, said columns are “Not attracted” or
falsely mentioned “NonApplicable” for him which is
breach of Law and non compliance of disclosed truth
facts essential of the Affidavit and the Respondent
No.4 ought to have mentioned the said material facts
in the said columns of Affidavit. The copy of
nomination application with the false Affidavit and
the certificate copy of chargesheet attached herein.
7) The Petitioner states and argued that noncompliance
of regards pending criminal cases in the nomination
form, Affidavit, and upon the knowledge the said fact
immediately put up written objection before the
Competent Election authority on 23/2/2012 that the
Respondent No.4 submitted false Affidavit and
contesting the said Election. The copy of said
objection letter attached herein.
8) The Petitioner submits that, the Respondent No.4
being not qualified to contest the general election of
PMC held on 16/2/2012, his election as a member
from Ward No.44 seat B is void and has affected the
result of the election from that ward/constituency.
Hence result so declare for the election conducted in
the Ward No.44 Seat No.B based on false information
of Respondent No.4 which was false to his own
knowledge and hence is illegal and void ab initio.
10) It is submitted that, because of above all false
information provided by Respondent No.4 it is highly
affected on the result of Ward No.44 Seat B especially
because Respondent No.4 was not qualified as per
election norms and rules as mentioned above. As
Respondent No.4 was not legally qualified and by
funishing false information in Affidavit Respondent
No.4 has elected by fraud and hence liable to
disqualify. Therefore the Respondent No.4 would be
disqualified in contesting the elections as he willfully
filed a false Affidavit in the nomination form
regarding his Criminal background.”
Hence save and except the facts stated in the paragraphs
mentioned herein above, there were no other facts stated in the Election
Petition.
4 The Respondent No.4 in the Election Petition filed his written
statement and questioned the maintainability of the Election Petition on the
ground that the material facts or particulars were not stated. It was averred
that under which provision the Election Petition was filed was not stated. It
was therefore averred that the Election Petition as filed was not maintainable.
The relevant excerpts of the written statement of the Respondent No.4 i.e.
paragraphs 2, 9, 15 and 16 are material and are reproduced herein under for
the sake of ready reference :
“2) The Respondent submits that the Petition filed by the
Petitioner is not maintainable because it is not
mentioned by the Petitioner under which section
petition filed and petitioner has not given the details in
the petition as required by the provisions of law.
Therefore petition of the petitioner is not
maintainable, hence be dismissed.
9) The Respondent submits that the petition filed by the
petitioner is not covered by provisions of law and it is
not filed as per the provisions of law. Therefore
petition filed on the grounds mentioned in the petition
is not maintainable, hence be dismissed.
15) The Respondent submits that information submitted in
nomination paper by the respondent along with the
document is proper and legal. There is no fraud made
by the respondent. The petitioner has not pleaded the
fraud. The Respondent further submits that there is no
criminal background of the respondent and the cases
referred by the petitioner in the petition in which
respondent was not involved and those cases are
political in nature. There is no reason arose for filing
the petition against the respondent, hence petition of
the petitioner is not maintainable, be dismissed.
16) That the contents of para 13a to 13g of the petition
are not true and correct, hence denied by the
respondent. Petitioner be put to the strict proof the
same. The Respondent submits that the petition is not
in proper form and there are no required details and
information given by the petitioner in petition.
Therefore petition of the petitioner is not
maintainable, be dismissed.”
5 The Election Petitioner filed an application for amendment of the
Election Petition to inter alia incorporate the facts relating to the criminal cases
pending against the Respondent No.4, in the Election Petition. The said
Application was numbered as Exhibit 51. The said application was opposed to
on behalf of the Respondent No.4 on the ground that after the limitation
period is over, the facts cannot be allowed to be incorporated. The said
application (Exhibit 51) came to be rejected by the learned Principal Judge of
the Small Causes Court, Pune by order dated 11/02/2013. The Election
Petitioner carried the matter to this Court by way of Writ Petition being
No.2673 of 2013. The said Writ Petition came to be withdrawn by the Election
Petitioner for taking appropriate steps.
6 The Trial Court on the basis of the pleadings of the parties framed
the following issues :
1) Whether petitioner proves that Respondent No.4
Vijay Deshmukh did not mention the fact regarding
pendency of criminal Sessions Case No.64/1997,
pending Sessions Court, Baramati, purposely, as
alleged?
2) Whether petitioner proves that respondent No.4
indulged into corrupt practices and he was not even
qualified to contest the election, as alleged?
3) Whether petitioner is entitled for the relief of setting
aside the election of respondent No.4 from Ward
No.44/B of PMC, as prayed for?
4) Whether petitioner proves that he is entitled for the
declaration as a elected councilor of Ward No.44B of
PM?
5] What order?
7] The parties led evidence in support of their respective assertions. The
Election Petitioner Vijay More examined himself, whereas the Respondent No.4
in the Election Petition Shri Vijay Deshmukh examined himself as well as two
other witnesses namely Sandip Sanjay Garud and Popat Kondiba Rokade. The
Election Petitioner also filed various documents which have been referred to in
Paragraph 11 of the impugned order. The Election Petition thereafter
proceeded to trial.
8] The Trial Court on the basis of the material on record answered all
the issues against the Respondent No.4 and held that the Elections were
vitiated on account of the fact that the Respondent No.4 had suppressed the
information which was to be supplied through the affidavit which was to be
submitted along with the nomination form. The Trial Court accordingly
unseated the Respondent No.4 herein as a Municipal Corporator from the said
Ward No.44 B, Hadapsar, Pune. The Trial Court recorded a finding that the
Respondent No.4 has deliberately suppressed the fact of Sessions Case No.64
of 1997, material information in respect of the bank account was suppressed,
that since at the time of scrutiny of the nomination, the Election Petitioner did
not have the said information, the objection to the nomination of the
Respondent No.4 could not be taken at the time of scrutiny, that the Election
Petitioner herein has succeeded in proving the Respondent No.4 has
suppressed material information on the date of submitting his nomination, that
the affidavit submitted with the nomination form was without the requisite
information highlighting the criminal antecedents and therefore there is an
attempt to suppress and the same is undisputedly amounting to undue
influence and therefore amounts to corrupt practices. A finding was also
recorded that the Respondent No.4 is not qualified to contest the election and
therefore the Election Petitioner is entitled for the relief of setting aside of the
election of the Respondent No.4. However, though the Trial Court unseated the
Respondent No.4 as a Corporator of the Pune Municipal Corporation, it did not
grant the relief to the Election Petitioner of being declared as elected in place
of the Respondent No.4. As indicated above it is the said order dated
06/10/2015 which is taken exception to by way of the above Writ Petition
No.11334 of 2015 as also the Election Petitioner has filed his own Writ Petition
being No.10730 of 2015 impugning the said order dated 06/10/2015 in so far
as it rejects his prayer for being declared as elected in place of the Respondent
No.4.
9 During the course of hearing of the above Petitions, the learned
counsel Shri S B Shetye appearing for the Respondent – State Election
Commission has produced the instructions issued by the State Election
Commission dated 15/03/2004 in respect of the affidavit to be filed by the
candidate along with the nomination form and in which affidavit details of the
criminal cases pending against the candidate, bank account of the candidate
and PAN number of the candidate are to be provided. In so far as the criminal
cases are concerned, in terms of the requirement of the said affidavit, a
candidate has to mention the criminal cases which are filed/pending against
him and in respect of which the offence is punishable by punishment of more
than 2 years and in which a chargesheet has been filed. The learned counsel
Shri S B Shetye has also produced the subsequent order dated 07/07/2008
issued by the State Election Commission by which the earlier information in
respect of the criminal cases was clarified. However, it is required to be noted
that the aforesaid material was not placed before the Trial Court by the said
Respondent – State Election Commission whilst the Election Petition was
pending though it was a party to the Election Petition.
10 Heard the learned counsel for the parties.
11 SUBMISSIONS ON BEHALF OF THE PETITIONER HEREIN
(RESPONDENT NO. 4 IN ELECTION PETITION) BY THE
LEARNED COUNSEL SHRI B. D. JOSHI
a] That the Election Petition is bereft of material particulars in respect
of the alleged criminal cases pending against the Petitioner herein
(Respondent No.4) and therefore the Election Petition ought to
have been dismissed on the said ground. In support of the said
contention, the learned counsel sought to place reliance on the
judgments of the Apex Court reported in 1976 SC 744 in the
matter of Udhav Singh v/s. Madhav Rao Scindia; AIR 1986 SC
1253 in the matter of Azhar Hussain v/s. Rajiv Gandhi; AIR
1987 SC 1577 in the matter of Dhartipakar Madan Lal Agarwal
v/s. Rajiv Gandhi and 1987 SC 1926 in the matter of Samar
Singh v/s. Kedar Nath and others, as well as the judgment of a
learned Single Judge of this Court reported in 2016(2) Mh. L.J.
613 in the matter of Satish Mahadeorao Uke v/s. Devendra
Gangadhar Fadnavis.
b] That in terms of the law laid down in respect of furnishing
material particulars in an Election Petition, it was obligatory on the
part of the Respondent No.2 herein (i.e. the Election Petitioner) to
give details of the criminal cases and whether the charge sheet has
been filed or not so that the Petitioner herein could have an
opportunity to deal with the said fact. However, the Election
Petition is bereft of such material particulars and ought to have
dismissed.
c] That the Trial Court has erred in permitting the Election Petitioner
to lead evidence in respect of the said cases when there were
absolutely no pleadings in that regard. The evidence is therefore
dehors the pleadings and the Trial Court has therefore disregarded
the principles governing the approach to evidence and thereby has
committed grave errors. Reliance is sought to be placed on the
judgment of the Apex Court reported in (1999) 9 SCC 386 in the
matter of Jeet Mohinder Singh v/s. Harminder Singh Jassi.
d] In so far as corrupt practice and fraud is concerned, there are
absolutely no pleadings in that regard so that an issue in respect of
corrupt practice or fraud could be framed.
e] The Trial Court has erred in recording a finding in respect of the
said Case No.64 of 1997 when the details in respect of the said
case were not given by the Election Petitioner.
f] The Trial Court failed to appreciate that the said case was an old
case and that the name of the accused and the Petitioner herein
(i.e. Respondent No.4) is the same i.e. Vijay Waman Deshmukh,
the Petitioner herein could not be said to be absconding as the
Petitioner herein is a Municipal Corporator for a period of about
10 years and could have been very well served with the chargesheet
etc.
g] The Trial Court erred in recording a finding that the Respondent
No.4 has not disclosed the loan taken when the same was not even
the case of the Election Petitioner and the case was that only the
column in respect of the bank account was kept blank;
h] That the findings arrived at by the Trial Court are not on the basis
of the standard of proof required in an Election Petition.
i] That the Trial Court has not framed the issues which are arising
out of the pleadings and which are germane to an Election
Petition.
j] That having regard to Section 16 of the Bombay Provincial
Municipal Corporation Act, 1949, the violation of the directions of
the Election Commission is not a ground for a challenge to the
election of a returned candidate;
12 SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.2
HEREIN (i.e. ELECTION PETITIONER IN THE ELECTION
PETITION) BY THE LEARNED SENIOR COUNSEL SHRI
S.M.GORWADKAR :
i] The learned Senior Counsel sought to counter the submissions
made on behalf of the Petitioner herein Shri B D Joshi as regards
absence of material particulars by relying upon paragraphs 6, 7, 8
and 10 and contending that the said particulars were enough to
put the Respondent No.4 to the Election Petition to notice. It was
therefore the submission of the learned Senior Counsel that the
Election Petition does not lack in material particulars.
ii] That assuming the Election Petition lacks in material particulars in
respect of the criminal cases, the fact that the Petitioner herein had
kept the columns in respect of bank account and had mentioned
the wrong PAN card number was fatal to the acceptance of the
nomination of the Petitioner herein. Reliance is sought to be
placed on the judgment of the Apex Court reported in (2015) 3
SCC 467 in the matter of Krishnamoorthy v/s. Sivakumar and
others.
iii] That assuming appropriate issues are not framed, the same does
not vitiate the order passed by the Trial Court as the parties
proceeded to trial on the basis of the said issues and were knowing
what the rival case was. Reliance was sought to be placed on the
judgments of the Apex Court, reported in AIR 1963 SC 884 in the
matter of Nedunuri Kameswaramma v/s. Sampati Subba Rao
and 1969 (1) SCC 741 in the matter of Shaik Mohammed
Umar Saheb v/s. Kaleskar Hasham Karimsab and others
iv] The learned Senior Counsel also placed reliance on Section 403 of
the Bombay Provincial Municipal Corporation Act, 1949 to
contend that noncompliance of the details to be given in the
nomination form would entail disqualification of the Petitioner
herein and his unseating as a Corporater.
13 Having heard the learned counsel for the parties, I have
considered the rival contentions. In the instant case, filing of the Election
Petition is referable to Section 16 of the Bombay Provincial Municipal
Corporation Act, 1949 (for short “the said Act”). For the sake of ready
reference the said provision is reproduced herein under :
16. Election petitions (1) If the qualification of any
person declared to be elected a councillor is disputed,
or if the validity of any election is questioned, whether
by reason of the improper rejection by the State
Election Commissioner of a nomination or of the
improper rejection or refusal of a vote, or by reason of a
material irregularity in the election proceedings,
corrupt practice, or any other thing materially affecting
the result of the election, any person enrolled in the
municipal election roll may at any time within ten days
after the result of the election has been declared,
submit an application to the Judge for the
determination of the dispute or question.
(2) The State Election Commissioner may, if it has
reason to believe that an election has not been a free
election by reason of the large number of cases in
which undue influence or bribery has been exercised or
committed, by order in writing, authorise any officer of
the Commission to make an application to the Judge at
any time within one month after the result of the
election has been declared for a declaration that the
election of the returned candidate or candidates is void.
(2A) No election to any Corporation shall be called in
question except by an election petition presented to the
Judge referred to in subsection (1) and no Judge other
than the Judge referred to in subsection (1) shall
entertain any dispute in respect of such election.
(3) The Judge shall decide the applications made under
subsection (1) or (2) after holding an inquiry in the
manner provided by or under this Act.
Explanations.For the purposes of this section—
(1) "corrupt practice" means one of the following
practices, namely:
(a) any gift, offer or promise by a candidate or his
agent or by any person with the connivance of a
candidate or his agent of any gratification,
pecuniary or otherwise, to any person
whomsoever, with the object, directly or
indirectly of inducing a person to stand or not to
stand as, or to withdraw from being, a candidate
at an election or a voter to vote or refrain from
voting at an election or as a reward to a person
for having so stood or not stood or for having
withdrawn his candidature or a voter for having
voted or refrained from voting;
(b) any direct or indirect interference or attempt to
interfere on the part of a candidate or his agent
or of any other person with the connivance of the
candidate or his agent with the free exercise of
any electoral right, including the use of threats of
injury of any kind or the creation or attempt to
create fear of divine displeasure or spiritual
censure, but not including a declaration of public
policy or a promise of public action or the mere
exercise of a legal right without intent to
interfere with a legal right;
(c) the procuring or abetting or attempting to
procure by a candidate or his agent or by any
other person with the connivance of a candidate
or his agent, the application by a person for a
voting paper in the name of any other person
whether living or dead or in a fictitious name or
by a person for a voting paper in his own name
when, by reason of the fact that he has already
voted in the same or some other ward, he is not
entitled to vote;
(d) the removal of a voting paper from the polling
station during polling hours by any person with
the connivance of a candidate or his agent;
(e) the publication by a candidate or his agent or by
any other person with the connivance of the
candidate or his agent of any statement of fact
which is false, and which he either believes to be
false or does not believe to be true, in relation to
the personal character or conduct of any
candidate, being a statement reasonably
calculated to prejudice the prospects of that
candidate's election;
(f) any acts specified in paragraphs (a), (b), (d) and
(e) when done by a person who is not a
candidate or his agent or a person acting with the
connivance of a candidate or his agent;
(g) the application by a person at an election for a
voting paper in the name of any other person,
whether living or dead, or in a fictitious name, or
for a voting paper in his own name when, by
reason of the fact that he has already voted in the
same or another ward, he is entitled not to vote;
or
(h) the receipt of, or agreement to receive, any
gratification of the kind described in paragraph
(a) as a motive or reward for doing or refraining
from doing any of the acts therein specified;
(2) A corrupt practice shall not be deemed to have
been committed in the interests of a returned candidate
if the Judge is satisfied that it was of a trivial and
limited character which did not affect the result of the
election, that in all other respects the election was free
from any corrupt practice on the part of the candidate
or any of his agents, that it was committed without the
sanction or connivance or contrary to the orders of the
candidate or his agents, and that the candidate and his
agents took all reasonable means for preventing the
commission of corrupt practices at the election.
A reading of the said provision therefore makes it clear that the said provision
can be invoked if the election is to be questioned on the ground of improper
rejection of a nomination, or improper reception of nomination or refusal of a
vote or by reason of a material irregularity in the election proceedings, corrupt
practice, or any other thing materially affecting the result of the election. The
said provision also postulates as to what amounts to a corrupt practice under
the said provision.
In so far as Section 403 of the said Act is concerned, the same
reads thus :
403. Procedure in election inquiries (1) If an
application is made under section 16 for a declaration
that any particular candidate shall be deemed to have
been elected, the applicant shall make parties to his
application all the candidates who were duly
nominated for the seat or seats in the ward in question,
whether or not the said candidates have been declared
elected, and shall proceed against the candidate or
candidates declared elected.
(2) The applicant shall, whenever so required by
the Judge, deposit in the Court a sum of five hundred
rupees in cash or Government securities of equivalent
value at the market rate of the day as security for any
costs which the applicant may be ordered to pay to
other parties to the said application.
(3) If, after making such inquiry as he deems
necessary, the Judge finds that the election of a
returned candidate has been procured or induced or
the result of the election has been materially affected
by any corrupt practice, of any corrupt practice has
been committed in the interests of a returned candidate
or the result of the election has been materially
affected by the improper acceptance or rejection of any
nomination or by reason of the fact that any person
nominated was not qualified or was disqualified for
election, or by the improper reception or refusal of a
vote or by the reception of a vote which is void, or by
any noncompliance with the provisions of this Act or
any rules made thereunder relating to the election, or
by any mistake in the use of any prescribed form, or
the election has not been a free election by reason of
the large number of cases in which bribery or undue
influence has been exercised or committed, he shall
declare the election of the returned candidate to be
void and if he does not so find he shall confirm the
election of the returned candidate.
(4) All applications received under section 16—
(a) in which the validity of the election of councillors
elected to represent the same ward is in question
shall be heard by the same Judge, and
(b) in which the validity of the election of the same
councillor elected to represent the same ward is in
question shall be heard together.
(5) If an application is made under section 16
that any particular candidate (other than the candidate
declared to have been elected) shall be deemed to have
been elected, then the returned candidate or any other
party may give evidence to prove that the election of
the person in whose favour such declaration is sought
would have been void, if he had been declared elected
and an application had been presented calling in
question his election.
If the Judge is of opinion –
(i) that in fact any candidae in whose favour the declaration is
sought has received a majority of the valid votes, or
(ii) that but for the votes obtained by the returned candidate by
corrupt practices, such candidate would have obtained a
majority of the valid votes;
the judge shall after declaring the election of the
returned candidate to be void declared the candidate in
whose favour the declaration is sought, to have been
duly elected.
(6) The Judge's order under this section shall be
conclusive.
(7) Every election not called in question in
accordance with the foregoing provisions shall be
deemed to have been to all intents a good and valid
election.
Reading of the said provision therefore discloses that the said provision lays
down the procedure for the trial of an Election Petition under the said Act and
contemplates setting aside the election for the reasons mentioned therein, one
of the reasons mentioned therein is the mistake in the use of any prescribed
form. Hence it is Section 16 of the said Act which can be said to be the main
substantive provision under which the Election Petition can be filed. In so far as
Section 16 of the said Act is concerned, as contended by the learned counsel
for the Respondent No.4, it does not refer to any directions issued by the
Election Commission either of the State or of the Centre, the violation of whose
directions would be a ground for challenging the elections.
14 In so far as the directions issued by the State Election Commission
are concerned, in respect of filing of the affidavit by the candidates by giving
their personal information, the same is referable to the law which is developed
in respect of bringing probity in public life. One of the outcomes of the said
development is the introduction of Section 33A in the Representation of
People's Act, 1971. The essence of the mandate of Section 33A is now sought to
be replicated in so far as the elections to the local bodies are concerned. Hence
a candidate is required to file an affidavit in the form containing details of his
personal particulars. Hence the violation of the directions of the Election
Commission would have to be seen from the said perspective. This is in so far
as the statutory parameters under which an Election Petition filed under the
said Act is required to be adjudicated.
15 Now coming to the issues that are required to be framed. There
can be no gainsaying of the fact that the issues are framed in respect of only
those facts which are alleged by one of the parties and denied or not admitted
by other party, and the issues are to be framed to determine the real
controversy involved in the pleadings of the parties. In so far as the Election
Petitions are concerned, be it either those of local bodies or assembly or
parliament, the Election Petition challenging the elections to the local bodies or
legislature or parliament, the basis requirement or the fundamental
requirement is that the material facts or particulars on the basis of which the
cause of action for filing the Election Petition has arisen must be pleaded . In
the instant case, as indicated above, it is the contention of the learned Senior
Counsel Shri S M Gorwadkar appearing on behalf of the Election Petitioner
that such material particulars find a place in Paragraphs 6, 7, 8 and 10 of the
Election Petition. It is required to be noted that in the written statement filed
by the Respondent No.4 to the Election Petition, excerpts of which have already
been reproduced herein above, the Respondent No.4 has categorically
questioned the maintainability of the Election Petition on the ground of
material particulars having not been given meaning thereby that the Election
Petition is lacking in material particulars, and has therefore sought the
dismissal of the Election Petition on the said ground. However, though it has
been so averred, the Trial Court has not framed an issue in that regard though
raised by the Respondent No.4 which in my view, is the most important issue in
an Election Petition where a challenge is raised to the election of a returned
candidate and where an issue is raised as regards lack of material particulars or
facts. It is also required to be noted that an issue as regards noncompliance of
the directions of the State Election Commission was also required to be framed
as the affidavit which is to accompany the nomination form is pursuant to the
directions issued by the State Election Commission. This is required especially
in the light of the fact that unseating of a returned candidate is sought on the
ground that in the affidavit filed by the Respondent No.4 there are blanks. A
reading of the issues framed by the Trial Court shows that the Trial Court has
not framed issues in respect of which the parties are at issue in the Election
Petition. The Trial Court as can be seen has framed an issue viz. “as to whether
the Respondent No.4 has indulged into corrupt practices and he was not even
qualified to contest the elections as alleged”. As indicated above the Election
Petition is bereft of any case of corrupt practice being set up as also the case of
fraud in respect of which case the Election Petitioner was obliged to first set up
a case of corrupt practice and then give material particulars, if he is alleging
corrupt practice or fraud. By framing the said issue in the manner framed, the
Trial Court has clubbed two issues into one which have no connection with
each other. In so far as corrupt practice is concerned, as indicated above, it is
not even the case of the Election Petitioner in the Election Petition that the
Respondent No.4 has indulged in any corrupt practice and therefore the
question that begs an answer as to how in the absence of any pleadings, the
Trial Court could have framed the said issue. In so far as qualification to
contest the election is concerned, the same would be part of the aspect as to
whether noncompliance of the directions of the State Election Commission
would amount to a disqualification to contest the elections. Hence having
regard to the issues framed, the same can be said to be not in consonance with
the pleadings of the parties. It is therefore not possible to gloss over the said
aspect by holding that though proper issues were not framed, since the parties
knew what they were litigating at the order passed by the Trial Court is not
vitiated.
16 It is required to be noted that though an application for
amendment Exhibit51 filed by the Election Petitioner was rejected the
Election Petitioner has filed his affidavit of evidence and in the said affidavit
has mentioned the criminal cases and given the details of the criminal cases
allegedly pending against the Respondent No.4. It is required to be noted that
in respect of the said information, it is stated by the Election Petitioner in his
affidavit of evidence that the said information he has got from one Shri
Madhav Kishanrao Jagtap – the Assistant Election Officer. Pertinently the said
Shri Madhav Jagtap has not been examined by the Election Petitioner. It is in
the said context that the learned counsel appearing for the Petitioner herein
Shri B D Joshi submitted that it is one more circumstance where the evidence
has been allowed to be led dehors the pleadings. Hence an issue in that regard
was also required to be framed.
17 Now coming to the judgments cited on either side i.e. the
judgments cited in Madhav Singh's case, in Azar Hussain's case, Dhartipakar
Madan Lal Agarwal's case, in Samar Singh's case and lastly in Satish
Mahadeorao Uke's case (supra) by the learned counsel for the Petitioner
herein Shri B D Joshi in support of his contention that the Election Petition is
lacking in material particulars and therefore is required to be dismissed on the
said ground, as also the judgments in Krishnamoorthy's case, Nedunuri
Kameswaramma's case and in Shaik Mohd. Umar Saheb's case cited by the
learned Senior Counsel appearing of the Election Petitioner Shri S M
Gorwadkar, are concerned, it is not necessary for this Court to go into the
applicability of the said judgments at this stage having regard to the final
directions that this Court is inclined to issue in the above Petitions.
The learned counsel for the Respondent No.4 Shri B D Joshi
vehemently urged that the impugned order is required to be set aside and the
Election Petition is required to be dismissed on the ground of lack of material
particulars or facts in terms of the law laid down by the Apex Court in the
Judgments (supra) cited by him. It is not possible to accept the said contention
of the learned counsel for the Respondent No.4 in the absence of the matter
being examined by the Trial Court from the said angle, by framing an issue in
that regard and answering the said issue.
18 It is also not possible to accept the contention urged on behalf of
the Election Petitioner by the learned Senior Counsel Shri S M Gorwadkar that
assuming that in respect of criminal cases, material particulars are not pleaded
but the fact remains that the Election Petitioner has kept blanks in the affidavit
and therefore in terms of the law laid down by the Apex Court in
Krishnamoorthy's case (supra), the order passed by the Trial Court against the
Respondent No.4 can be sustained. In so far as the said contention is
concerned, the said exercise would have to be carried out by the Trial Court
and an issue would have to be framed in that regard, it is not possible for this
Court to record a finding that though the Election Petition lacks in material
particulars in respect of the alleged criminal cases against the Respondent
No.4, nevertheless the Respondent No.4 is required to be unseated on account
of the blanks that he has kept in the affidavit. Since such an issue was not
framed and answered, it is not possible to accept the said contention.
19 In so far as the contention of the learned Senior Counsel Shri S M
Gorwadkar for the Election Petitioner, that though the issues framed may be
defective but since the parties knew what they were litigating at, the order is
not vitiated on the said ground in support of which reliance was placed on the
judgment of Shaik Mohd. Umar Saheb's case (supra). In the instant case it is
required to be noted that it is not one or two issues which were not properly
framed, but the instant case is a case where basic issues arising out of the
pleadings have not been framed. The most important issue being whether the
Election Petition lacks in material particulars. Though the learned counsel
appearing for the Petitioner herein (i.e. Respondent No.4) Shri B D Joshi
sought to give justification for keeping the blanks or not giving the information
in respect of the criminal cases that were allegedly pending against the
Respondent No.4, it is not necessary for this Court to go into the said aspect at
this stage. In my view in the instant case on account of the fact that proper
issues were not framed by the Trial Court, the same has affected a proper
disposal of the Election Petition, and thereby resulting in a failure of meeting
out proper justice to the parties. The impugned order dated 06/10/2015
therefore stands vitiated on the ground that proper issues were not framed.
20 The finding recorded by the learned Principal Judge of the Small Causes
Court, Pune cannot be independently taken so as to come to a conclusion that
the Respondent No.4 has fallen foul of the statutory mandate and unseat the
Respondent No.4 in the absence of any issue/issues framed in that regard. The
exercise of considering the findings recorded by the Trial Court and then
referring it to issue or issues would be like putting the cart before the horse.
The said aspect is required to be considered in the context of the fact that in an
Election Petition the standard of proof is different than one in a Civil Suit
which is based on a preponderance of probabilities. During the course of
hearing of the above Petitions, it was suggested to the learned counsel for the
parties that to avoid delay in disposal of the Election Petition, the issues can be
reframed with the consent of the parties and that the Trial Court may be
directed to decide the said issues on the basis of the material both
documentary as well as oral which is already on record. Though the learned
counsel appearing for the Respondent No.4 Shri B D Joshi had shown some
inclination, the said suggestion was not acceptable to the learned Senior
Counsel Shri S M Gorwadkar for the Respondent No.2 herein (i.e. the Election
Petitioner). This Court was therefore left with no alternative but to carry out
the said exercise itself. For the reasons aforestated, the impugned order dated
06/10/2015 is required to be quashed and set aside, and is accordingly
quashed and set aside, and the Election Petition is remanded back to the Trial
Court for a denovo consideration of the same. The issues framed by the Trial
Court would stand set aside and would stand substituted by the following
issues :
[i] Whether Election Petition No.9 of 2012 suffers from nondisclosure
of material particulars or facts and is therefore required
to be dismissed on the said ground?
[ii] Whether nonfilling of the information in the affidavit to be filed
along with the nomination can be a ground for challenging an
election under Section 16 of the Bombay Provincial Municipal
Corporation Act, 1949?
[iii] Whether there was wrongful acceptance of the nomination of the
Respondent No.4 to the Election Petition and thereby the election
to Ward No.44 B, Hadapsar, Pune has been materially affected ?
[iv] Whether the evidence in respect of the criminal cases could have
been accepted in the absence of any pleadings ?
[v] Whether the Respondent No.4 to the Election Petition can be
unseated for keeping blanks in respect of the bank account and for
mentioning wrong PAN Card number?
[vi] Whether the Respondent No.4 to the Election Petition is required
to be unseated as a Corporator from Ward No.44 B, Hadapsar,
Pune ?
[vii] Whether the Election Petitioner proves that he is entitled for a
declaration as a elected candidate of Ward No.44 B, Hadapsar,
Pune in place of the Respondent No.4 to the Election Petition ?
The above reframed issues are exhaustive and no further issues
are required to be framed, since the reframed issues are to be tried on the
basis of the material which is already on record.
21 The instructions issued by the State Election Commission on
15/03/2004 and the subsequent order dated 07/07/2008 would be taken on
record by the Trial Court and marked as Exhibits.
22 Since the impugned order unseating the Petitioner is set aside, the
Trial Court is directed to hear and decide the said Election Petition in terms of
the issues now framed latest by 31/08/2016. It is clarified that the Trial Court
would decide the said issues on the basis of the existing material and evidence
on record. Needless to state that the contentions of the parties are kept open
for being urged before the Trial Court. Further needless to state that the
Election Petition would be tried on its own merits and in accordance with law
uninfluenced by the observations, if any, made in the instant order. However,
no bye elections to be held to the said Ward No.44 B, Hadapsar, Pune pending
consideration of the Election Petition on remand.
23 Writ Petition No.11334 of 2015 is allowed to the aforesaid extent.
Rule in Writ Petition No.11334 of 2015 is accordingly made absolute. In view
of the order as above disposing of Writ Petition No.11334 of 2015, Civil
Application No.3379 of 2015 does not survive and the same to accordingly
stand disposed of as such.
24 In so far as Writ Petition No.10730 of 2015 is concerned, in view
of the fact that the impugned order is set aside and the matter is relegated
back to the Trial Court for a denovo consideration, the said Writ Petition
No.10730 of 2015 has turned infructuous and is accordingly disposed of as
such. Rule in Writ Petition No.10730 of 2015 to accordingly stand disposed of.
25 At this stage, the learned Senior Counsel appearing for the
Respondent No.2 herein (i.e. the Election Petitioner) Shri S M Gorwadkar seeks
stay of the instant order for a period of four weeks from date. The learned
counsel appearing for the Petitioner herein (i.e the Respondent No.4) Shri B D
Joshi opposes the same. In the facts and circumstances of the present case, the
instant order is stayed for a period of four weeks from date.
[R.M.SAVANT, J]
can be no gainsaying of the fact that the issues are framed in respect of only
those facts which are alleged by one of the parties and denied or not admitted
by other party, and the issues are to be framed to determine the real
controversy involved in the pleadings of the parties. In so far as the Election
Petitions are concerned, be it either those of local bodies or assembly or
parliament, the Election Petition challenging the elections to the local bodies or
legislature or parliament, the basis requirement or the fundamental
requirement is that the material facts or particulars on the basis of which the
cause of action for filing the Election Petition has arisen must be pleaded .
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11334 OF 2015
ALONG WITH
CIVIL APPLICATION NO.3379 OF 2015
Shri Vijay Waman Deshmukh
Versus
Pune Municipal Corporation
CORAM : R. M. SAVANT, J.
DATE : 29th April 2016
Citation:2016(4) MHLJ 917
1 Rule in both the above Petitions, with the consent of the learned
counsel for the parties made returnable forthwith and heard.
2 The writ jurisdiction of this Court under Article 227 of the
Constitution of India is invoked against the order dated 06/10/2015 passed by
the learned Principal Judge of the Small Causes Court, Pune by which order
the Election Petition being No.9 of 2012 filed by the Respondent No.2 herein
came to be allowed and the Petitioner Shri Vijay Waman Deshmukh in Writ
Petition No.11334 of 2015 (i.e. the Respondent No.4 in the Election Petition)
came to be unseated as a Corporator of the Pune Municipal Corporation from
Ward No.44 B, Hadapsar, Pune.
In so far as Writ Petition No.10730 of 2015 is concerned, the same
has been filed by the Election Petitioner Shri Vijay Zumbar More (i.e. the
Respondent No.2 in Writ Petition No.11334 of 2015), challenging the same
order i.e. the order dated 06/10/2015 in so far as it rejects the prayer of the
said Petitioner of being declared elected from the said ward in place of the
Petitioner in Writ Petition No.11334 of 2015.
The Petitioner in Writ Petition No.11334 of 2015 i.e. Shri Vijay
Waman Deshmukh is the Respondent No.4, and the Respondent No.2 in the
said Writ Petition i.e. Shri Vijay Zumbar More is the Election Petitioner in the
Election Petition No.9 of 2012. The parties would therefore be referred to as
per their nomenclature in the Trial Court. The Petitioner herein i.e. Vijay
Waman Deshmukh would be referred to as the Respondent No.4, and the
Respondent No.2 herein Vijay Zumbar More would be referred to as the
Election Petitioner.
3 The facts giving rise to the filing of the above Petitions, in brief,
can be stated thus :
The elections to the General Body of the Pune Municipal
Corporation were held on 16/02/2012. The Respondent No.4 and the Election
Petitioner contested the elections from Ward No.44 B, Hadapsar, Pune of the
said Pune Municipal Corporation as candidates of their respective parties. It is
an undisputed position that the Respondent No.4 – Vijay Deshmukh was
declared elected from the said ward whereas the Election Petitioner Vijay More
has secured the 2nd highest votes. However, prior thereto the Respondent No.4
had filed his nomination form along with the affidavit as mandated to which
no objection was taken by the Election Petitioner at the time of scrutiny. After
the elections were over the Election Petitioner filed the instant Election Petition
No.9 of 2012 for setting aside the election of the Respondent No.4 on the
ground/grounds mentioned in the said Election Petition. In the context of the
challenge raised in the above Petition it would be apposite to refer to the
averments made in the Election Petition. Paragraphs 6, 7, 8 and 10 of the
Election Petition are material and reproduced herein under for the sake of
ready reference :
“6) It is submitted that Respondent No.4 i.e. Vijay
Wamanrao Deshmukh in the Affidavit of relevant
Criminal character, cases, proceeding and in the
relevant property clumn submitted false contents from
column no.1(1) upto false PAN Card number which is
not his own and also concealed the relevant true
information of his criminal involvement in crime and
property as also the pending Criminal Session Case
No.64 of 1997 lodged against him by Pune Rural
Police and where chargesheet has been filed before
the Hon'ble Sessions Judge, Baramati, Pune wherein
the Respondent No.4 shown as a “Absconding”
accused in the said Session Case un/s 395, 411 of
Indian Penal Code. The said fact was not mentioned
by Respondent No.4 in the said Affidavit purposefully
alongwith nomination application before relevant
authority on oath. On the contrary the Respondent
No.4 in the column and subsequent columns of this
Affidavit stated, said columns are “Not attracted” or
falsely mentioned “NonApplicable” for him which is
breach of Law and non compliance of disclosed truth
facts essential of the Affidavit and the Respondent
No.4 ought to have mentioned the said material facts
in the said columns of Affidavit. The copy of
nomination application with the false Affidavit and
the certificate copy of chargesheet attached herein.
7) The Petitioner states and argued that noncompliance
of regards pending criminal cases in the nomination
form, Affidavit, and upon the knowledge the said fact
immediately put up written objection before the
Competent Election authority on 23/2/2012 that the
Respondent No.4 submitted false Affidavit and
contesting the said Election. The copy of said
objection letter attached herein.
8) The Petitioner submits that, the Respondent No.4
being not qualified to contest the general election of
PMC held on 16/2/2012, his election as a member
from Ward No.44 seat B is void and has affected the
result of the election from that ward/constituency.
Hence result so declare for the election conducted in
the Ward No.44 Seat No.B based on false information
of Respondent No.4 which was false to his own
knowledge and hence is illegal and void ab initio.
10) It is submitted that, because of above all false
information provided by Respondent No.4 it is highly
affected on the result of Ward No.44 Seat B especially
because Respondent No.4 was not qualified as per
election norms and rules as mentioned above. As
Respondent No.4 was not legally qualified and by
funishing false information in Affidavit Respondent
No.4 has elected by fraud and hence liable to
disqualify. Therefore the Respondent No.4 would be
disqualified in contesting the elections as he willfully
filed a false Affidavit in the nomination form
regarding his Criminal background.”
Hence save and except the facts stated in the paragraphs
mentioned herein above, there were no other facts stated in the Election
Petition.
4 The Respondent No.4 in the Election Petition filed his written
statement and questioned the maintainability of the Election Petition on the
ground that the material facts or particulars were not stated. It was averred
that under which provision the Election Petition was filed was not stated. It
was therefore averred that the Election Petition as filed was not maintainable.
The relevant excerpts of the written statement of the Respondent No.4 i.e.
paragraphs 2, 9, 15 and 16 are material and are reproduced herein under for
the sake of ready reference :
“2) The Respondent submits that the Petition filed by the
Petitioner is not maintainable because it is not
mentioned by the Petitioner under which section
petition filed and petitioner has not given the details in
the petition as required by the provisions of law.
Therefore petition of the petitioner is not
maintainable, hence be dismissed.
9) The Respondent submits that the petition filed by the
petitioner is not covered by provisions of law and it is
not filed as per the provisions of law. Therefore
petition filed on the grounds mentioned in the petition
is not maintainable, hence be dismissed.
15) The Respondent submits that information submitted in
nomination paper by the respondent along with the
document is proper and legal. There is no fraud made
by the respondent. The petitioner has not pleaded the
fraud. The Respondent further submits that there is no
criminal background of the respondent and the cases
referred by the petitioner in the petition in which
respondent was not involved and those cases are
political in nature. There is no reason arose for filing
the petition against the respondent, hence petition of
the petitioner is not maintainable, be dismissed.
16) That the contents of para 13a to 13g of the petition
are not true and correct, hence denied by the
respondent. Petitioner be put to the strict proof the
same. The Respondent submits that the petition is not
in proper form and there are no required details and
information given by the petitioner in petition.
Therefore petition of the petitioner is not
maintainable, be dismissed.”
5 The Election Petitioner filed an application for amendment of the
Election Petition to inter alia incorporate the facts relating to the criminal cases
pending against the Respondent No.4, in the Election Petition. The said
Application was numbered as Exhibit 51. The said application was opposed to
on behalf of the Respondent No.4 on the ground that after the limitation
period is over, the facts cannot be allowed to be incorporated. The said
application (Exhibit 51) came to be rejected by the learned Principal Judge of
the Small Causes Court, Pune by order dated 11/02/2013. The Election
Petitioner carried the matter to this Court by way of Writ Petition being
No.2673 of 2013. The said Writ Petition came to be withdrawn by the Election
Petitioner for taking appropriate steps.
6 The Trial Court on the basis of the pleadings of the parties framed
the following issues :
1) Whether petitioner proves that Respondent No.4
Vijay Deshmukh did not mention the fact regarding
pendency of criminal Sessions Case No.64/1997,
pending Sessions Court, Baramati, purposely, as
alleged?
2) Whether petitioner proves that respondent No.4
indulged into corrupt practices and he was not even
qualified to contest the election, as alleged?
3) Whether petitioner is entitled for the relief of setting
aside the election of respondent No.4 from Ward
No.44/B of PMC, as prayed for?
4) Whether petitioner proves that he is entitled for the
declaration as a elected councilor of Ward No.44B of
PM?
5] What order?
7] The parties led evidence in support of their respective assertions. The
Election Petitioner Vijay More examined himself, whereas the Respondent No.4
in the Election Petition Shri Vijay Deshmukh examined himself as well as two
other witnesses namely Sandip Sanjay Garud and Popat Kondiba Rokade. The
Election Petitioner also filed various documents which have been referred to in
Paragraph 11 of the impugned order. The Election Petition thereafter
proceeded to trial.
8] The Trial Court on the basis of the material on record answered all
the issues against the Respondent No.4 and held that the Elections were
vitiated on account of the fact that the Respondent No.4 had suppressed the
information which was to be supplied through the affidavit which was to be
submitted along with the nomination form. The Trial Court accordingly
unseated the Respondent No.4 herein as a Municipal Corporator from the said
Ward No.44 B, Hadapsar, Pune. The Trial Court recorded a finding that the
Respondent No.4 has deliberately suppressed the fact of Sessions Case No.64
of 1997, material information in respect of the bank account was suppressed,
that since at the time of scrutiny of the nomination, the Election Petitioner did
not have the said information, the objection to the nomination of the
Respondent No.4 could not be taken at the time of scrutiny, that the Election
Petitioner herein has succeeded in proving the Respondent No.4 has
suppressed material information on the date of submitting his nomination, that
the affidavit submitted with the nomination form was without the requisite
information highlighting the criminal antecedents and therefore there is an
attempt to suppress and the same is undisputedly amounting to undue
influence and therefore amounts to corrupt practices. A finding was also
recorded that the Respondent No.4 is not qualified to contest the election and
therefore the Election Petitioner is entitled for the relief of setting aside of the
election of the Respondent No.4. However, though the Trial Court unseated the
Respondent No.4 as a Corporator of the Pune Municipal Corporation, it did not
grant the relief to the Election Petitioner of being declared as elected in place
of the Respondent No.4. As indicated above it is the said order dated
06/10/2015 which is taken exception to by way of the above Writ Petition
No.11334 of 2015 as also the Election Petitioner has filed his own Writ Petition
being No.10730 of 2015 impugning the said order dated 06/10/2015 in so far
as it rejects his prayer for being declared as elected in place of the Respondent
No.4.
9 During the course of hearing of the above Petitions, the learned
counsel Shri S B Shetye appearing for the Respondent – State Election
Commission has produced the instructions issued by the State Election
Commission dated 15/03/2004 in respect of the affidavit to be filed by the
candidate along with the nomination form and in which affidavit details of the
criminal cases pending against the candidate, bank account of the candidate
and PAN number of the candidate are to be provided. In so far as the criminal
cases are concerned, in terms of the requirement of the said affidavit, a
candidate has to mention the criminal cases which are filed/pending against
him and in respect of which the offence is punishable by punishment of more
than 2 years and in which a chargesheet has been filed. The learned counsel
Shri S B Shetye has also produced the subsequent order dated 07/07/2008
issued by the State Election Commission by which the earlier information in
respect of the criminal cases was clarified. However, it is required to be noted
that the aforesaid material was not placed before the Trial Court by the said
Respondent – State Election Commission whilst the Election Petition was
pending though it was a party to the Election Petition.
10 Heard the learned counsel for the parties.
11 SUBMISSIONS ON BEHALF OF THE PETITIONER HEREIN
(RESPONDENT NO. 4 IN ELECTION PETITION) BY THE
LEARNED COUNSEL SHRI B. D. JOSHI
a] That the Election Petition is bereft of material particulars in respect
of the alleged criminal cases pending against the Petitioner herein
(Respondent No.4) and therefore the Election Petition ought to
have been dismissed on the said ground. In support of the said
contention, the learned counsel sought to place reliance on the
judgments of the Apex Court reported in 1976 SC 744 in the
matter of Udhav Singh v/s. Madhav Rao Scindia; AIR 1986 SC
1253 in the matter of Azhar Hussain v/s. Rajiv Gandhi; AIR
1987 SC 1577 in the matter of Dhartipakar Madan Lal Agarwal
v/s. Rajiv Gandhi and 1987 SC 1926 in the matter of Samar
Singh v/s. Kedar Nath and others, as well as the judgment of a
learned Single Judge of this Court reported in 2016(2) Mh. L.J.
613 in the matter of Satish Mahadeorao Uke v/s. Devendra
Gangadhar Fadnavis.
b] That in terms of the law laid down in respect of furnishing
material particulars in an Election Petition, it was obligatory on the
part of the Respondent No.2 herein (i.e. the Election Petitioner) to
give details of the criminal cases and whether the charge sheet has
been filed or not so that the Petitioner herein could have an
opportunity to deal with the said fact. However, the Election
Petition is bereft of such material particulars and ought to have
dismissed.
c] That the Trial Court has erred in permitting the Election Petitioner
to lead evidence in respect of the said cases when there were
absolutely no pleadings in that regard. The evidence is therefore
dehors the pleadings and the Trial Court has therefore disregarded
the principles governing the approach to evidence and thereby has
committed grave errors. Reliance is sought to be placed on the
judgment of the Apex Court reported in (1999) 9 SCC 386 in the
matter of Jeet Mohinder Singh v/s. Harminder Singh Jassi.
d] In so far as corrupt practice and fraud is concerned, there are
absolutely no pleadings in that regard so that an issue in respect of
corrupt practice or fraud could be framed.
e] The Trial Court has erred in recording a finding in respect of the
said Case No.64 of 1997 when the details in respect of the said
case were not given by the Election Petitioner.
f] The Trial Court failed to appreciate that the said case was an old
case and that the name of the accused and the Petitioner herein
(i.e. Respondent No.4) is the same i.e. Vijay Waman Deshmukh,
the Petitioner herein could not be said to be absconding as the
Petitioner herein is a Municipal Corporator for a period of about
10 years and could have been very well served with the chargesheet
etc.
g] The Trial Court erred in recording a finding that the Respondent
No.4 has not disclosed the loan taken when the same was not even
the case of the Election Petitioner and the case was that only the
column in respect of the bank account was kept blank;
h] That the findings arrived at by the Trial Court are not on the basis
of the standard of proof required in an Election Petition.
i] That the Trial Court has not framed the issues which are arising
out of the pleadings and which are germane to an Election
Petition.
j] That having regard to Section 16 of the Bombay Provincial
Municipal Corporation Act, 1949, the violation of the directions of
the Election Commission is not a ground for a challenge to the
election of a returned candidate;
12 SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.2
HEREIN (i.e. ELECTION PETITIONER IN THE ELECTION
PETITION) BY THE LEARNED SENIOR COUNSEL SHRI
S.M.GORWADKAR :
i] The learned Senior Counsel sought to counter the submissions
made on behalf of the Petitioner herein Shri B D Joshi as regards
absence of material particulars by relying upon paragraphs 6, 7, 8
and 10 and contending that the said particulars were enough to
put the Respondent No.4 to the Election Petition to notice. It was
therefore the submission of the learned Senior Counsel that the
Election Petition does not lack in material particulars.
ii] That assuming the Election Petition lacks in material particulars in
respect of the criminal cases, the fact that the Petitioner herein had
kept the columns in respect of bank account and had mentioned
the wrong PAN card number was fatal to the acceptance of the
nomination of the Petitioner herein. Reliance is sought to be
placed on the judgment of the Apex Court reported in (2015) 3
SCC 467 in the matter of Krishnamoorthy v/s. Sivakumar and
others.
iii] That assuming appropriate issues are not framed, the same does
not vitiate the order passed by the Trial Court as the parties
proceeded to trial on the basis of the said issues and were knowing
what the rival case was. Reliance was sought to be placed on the
judgments of the Apex Court, reported in AIR 1963 SC 884 in the
matter of Nedunuri Kameswaramma v/s. Sampati Subba Rao
and 1969 (1) SCC 741 in the matter of Shaik Mohammed
Umar Saheb v/s. Kaleskar Hasham Karimsab and others
iv] The learned Senior Counsel also placed reliance on Section 403 of
the Bombay Provincial Municipal Corporation Act, 1949 to
contend that noncompliance of the details to be given in the
nomination form would entail disqualification of the Petitioner
herein and his unseating as a Corporater.
13 Having heard the learned counsel for the parties, I have
considered the rival contentions. In the instant case, filing of the Election
Petition is referable to Section 16 of the Bombay Provincial Municipal
Corporation Act, 1949 (for short “the said Act”). For the sake of ready
reference the said provision is reproduced herein under :
16. Election petitions (1) If the qualification of any
person declared to be elected a councillor is disputed,
or if the validity of any election is questioned, whether
by reason of the improper rejection by the State
Election Commissioner of a nomination or of the
improper rejection or refusal of a vote, or by reason of a
material irregularity in the election proceedings,
corrupt practice, or any other thing materially affecting
the result of the election, any person enrolled in the
municipal election roll may at any time within ten days
after the result of the election has been declared,
submit an application to the Judge for the
determination of the dispute or question.
(2) The State Election Commissioner may, if it has
reason to believe that an election has not been a free
election by reason of the large number of cases in
which undue influence or bribery has been exercised or
committed, by order in writing, authorise any officer of
the Commission to make an application to the Judge at
any time within one month after the result of the
election has been declared for a declaration that the
election of the returned candidate or candidates is void.
(2A) No election to any Corporation shall be called in
question except by an election petition presented to the
Judge referred to in subsection (1) and no Judge other
than the Judge referred to in subsection (1) shall
entertain any dispute in respect of such election.
(3) The Judge shall decide the applications made under
subsection (1) or (2) after holding an inquiry in the
manner provided by or under this Act.
Explanations.For the purposes of this section—
(1) "corrupt practice" means one of the following
practices, namely:
(a) any gift, offer or promise by a candidate or his
agent or by any person with the connivance of a
candidate or his agent of any gratification,
pecuniary or otherwise, to any person
whomsoever, with the object, directly or
indirectly of inducing a person to stand or not to
stand as, or to withdraw from being, a candidate
at an election or a voter to vote or refrain from
voting at an election or as a reward to a person
for having so stood or not stood or for having
withdrawn his candidature or a voter for having
voted or refrained from voting;
(b) any direct or indirect interference or attempt to
interfere on the part of a candidate or his agent
or of any other person with the connivance of the
candidate or his agent with the free exercise of
any electoral right, including the use of threats of
injury of any kind or the creation or attempt to
create fear of divine displeasure or spiritual
censure, but not including a declaration of public
policy or a promise of public action or the mere
exercise of a legal right without intent to
interfere with a legal right;
(c) the procuring or abetting or attempting to
procure by a candidate or his agent or by any
other person with the connivance of a candidate
or his agent, the application by a person for a
voting paper in the name of any other person
whether living or dead or in a fictitious name or
by a person for a voting paper in his own name
when, by reason of the fact that he has already
voted in the same or some other ward, he is not
entitled to vote;
(d) the removal of a voting paper from the polling
station during polling hours by any person with
the connivance of a candidate or his agent;
(e) the publication by a candidate or his agent or by
any other person with the connivance of the
candidate or his agent of any statement of fact
which is false, and which he either believes to be
false or does not believe to be true, in relation to
the personal character or conduct of any
candidate, being a statement reasonably
calculated to prejudice the prospects of that
candidate's election;
(f) any acts specified in paragraphs (a), (b), (d) and
(e) when done by a person who is not a
candidate or his agent or a person acting with the
connivance of a candidate or his agent;
(g) the application by a person at an election for a
voting paper in the name of any other person,
whether living or dead, or in a fictitious name, or
for a voting paper in his own name when, by
reason of the fact that he has already voted in the
same or another ward, he is entitled not to vote;
or
(h) the receipt of, or agreement to receive, any
gratification of the kind described in paragraph
(a) as a motive or reward for doing or refraining
from doing any of the acts therein specified;
(2) A corrupt practice shall not be deemed to have
been committed in the interests of a returned candidate
if the Judge is satisfied that it was of a trivial and
limited character which did not affect the result of the
election, that in all other respects the election was free
from any corrupt practice on the part of the candidate
or any of his agents, that it was committed without the
sanction or connivance or contrary to the orders of the
candidate or his agents, and that the candidate and his
agents took all reasonable means for preventing the
commission of corrupt practices at the election.
A reading of the said provision therefore makes it clear that the said provision
can be invoked if the election is to be questioned on the ground of improper
rejection of a nomination, or improper reception of nomination or refusal of a
vote or by reason of a material irregularity in the election proceedings, corrupt
practice, or any other thing materially affecting the result of the election. The
said provision also postulates as to what amounts to a corrupt practice under
the said provision.
In so far as Section 403 of the said Act is concerned, the same
reads thus :
403. Procedure in election inquiries (1) If an
application is made under section 16 for a declaration
that any particular candidate shall be deemed to have
been elected, the applicant shall make parties to his
application all the candidates who were duly
nominated for the seat or seats in the ward in question,
whether or not the said candidates have been declared
elected, and shall proceed against the candidate or
candidates declared elected.
(2) The applicant shall, whenever so required by
the Judge, deposit in the Court a sum of five hundred
rupees in cash or Government securities of equivalent
value at the market rate of the day as security for any
costs which the applicant may be ordered to pay to
other parties to the said application.
(3) If, after making such inquiry as he deems
necessary, the Judge finds that the election of a
returned candidate has been procured or induced or
the result of the election has been materially affected
by any corrupt practice, of any corrupt practice has
been committed in the interests of a returned candidate
or the result of the election has been materially
affected by the improper acceptance or rejection of any
nomination or by reason of the fact that any person
nominated was not qualified or was disqualified for
election, or by the improper reception or refusal of a
vote or by the reception of a vote which is void, or by
any noncompliance with the provisions of this Act or
any rules made thereunder relating to the election, or
by any mistake in the use of any prescribed form, or
the election has not been a free election by reason of
the large number of cases in which bribery or undue
influence has been exercised or committed, he shall
declare the election of the returned candidate to be
void and if he does not so find he shall confirm the
election of the returned candidate.
(4) All applications received under section 16—
(a) in which the validity of the election of councillors
elected to represent the same ward is in question
shall be heard by the same Judge, and
(b) in which the validity of the election of the same
councillor elected to represent the same ward is in
question shall be heard together.
(5) If an application is made under section 16
that any particular candidate (other than the candidate
declared to have been elected) shall be deemed to have
been elected, then the returned candidate or any other
party may give evidence to prove that the election of
the person in whose favour such declaration is sought
would have been void, if he had been declared elected
and an application had been presented calling in
question his election.
If the Judge is of opinion –
(i) that in fact any candidae in whose favour the declaration is
sought has received a majority of the valid votes, or
(ii) that but for the votes obtained by the returned candidate by
corrupt practices, such candidate would have obtained a
majority of the valid votes;
the judge shall after declaring the election of the
returned candidate to be void declared the candidate in
whose favour the declaration is sought, to have been
duly elected.
(6) The Judge's order under this section shall be
conclusive.
(7) Every election not called in question in
accordance with the foregoing provisions shall be
deemed to have been to all intents a good and valid
election.
Reading of the said provision therefore discloses that the said provision lays
down the procedure for the trial of an Election Petition under the said Act and
contemplates setting aside the election for the reasons mentioned therein, one
of the reasons mentioned therein is the mistake in the use of any prescribed
form. Hence it is Section 16 of the said Act which can be said to be the main
substantive provision under which the Election Petition can be filed. In so far as
Section 16 of the said Act is concerned, as contended by the learned counsel
for the Respondent No.4, it does not refer to any directions issued by the
Election Commission either of the State or of the Centre, the violation of whose
directions would be a ground for challenging the elections.
14 In so far as the directions issued by the State Election Commission
are concerned, in respect of filing of the affidavit by the candidates by giving
their personal information, the same is referable to the law which is developed
in respect of bringing probity in public life. One of the outcomes of the said
development is the introduction of Section 33A in the Representation of
People's Act, 1971. The essence of the mandate of Section 33A is now sought to
be replicated in so far as the elections to the local bodies are concerned. Hence
a candidate is required to file an affidavit in the form containing details of his
personal particulars. Hence the violation of the directions of the Election
Commission would have to be seen from the said perspective. This is in so far
as the statutory parameters under which an Election Petition filed under the
said Act is required to be adjudicated.
15 Now coming to the issues that are required to be framed. There
can be no gainsaying of the fact that the issues are framed in respect of only
those facts which are alleged by one of the parties and denied or not admitted
by other party, and the issues are to be framed to determine the real
controversy involved in the pleadings of the parties. In so far as the Election
Petitions are concerned, be it either those of local bodies or assembly or
parliament, the Election Petition challenging the elections to the local bodies or
legislature or parliament, the basis requirement or the fundamental
requirement is that the material facts or particulars on the basis of which the
cause of action for filing the Election Petition has arisen must be pleaded . In
the instant case, as indicated above, it is the contention of the learned Senior
Counsel Shri S M Gorwadkar appearing on behalf of the Election Petitioner
that such material particulars find a place in Paragraphs 6, 7, 8 and 10 of the
Election Petition. It is required to be noted that in the written statement filed
by the Respondent No.4 to the Election Petition, excerpts of which have already
been reproduced herein above, the Respondent No.4 has categorically
questioned the maintainability of the Election Petition on the ground of
material particulars having not been given meaning thereby that the Election
Petition is lacking in material particulars, and has therefore sought the
dismissal of the Election Petition on the said ground. However, though it has
been so averred, the Trial Court has not framed an issue in that regard though
raised by the Respondent No.4 which in my view, is the most important issue in
an Election Petition where a challenge is raised to the election of a returned
candidate and where an issue is raised as regards lack of material particulars or
facts. It is also required to be noted that an issue as regards noncompliance of
the directions of the State Election Commission was also required to be framed
as the affidavit which is to accompany the nomination form is pursuant to the
directions issued by the State Election Commission. This is required especially
in the light of the fact that unseating of a returned candidate is sought on the
ground that in the affidavit filed by the Respondent No.4 there are blanks. A
reading of the issues framed by the Trial Court shows that the Trial Court has
not framed issues in respect of which the parties are at issue in the Election
Petition. The Trial Court as can be seen has framed an issue viz. “as to whether
the Respondent No.4 has indulged into corrupt practices and he was not even
qualified to contest the elections as alleged”. As indicated above the Election
Petition is bereft of any case of corrupt practice being set up as also the case of
fraud in respect of which case the Election Petitioner was obliged to first set up
a case of corrupt practice and then give material particulars, if he is alleging
corrupt practice or fraud. By framing the said issue in the manner framed, the
Trial Court has clubbed two issues into one which have no connection with
each other. In so far as corrupt practice is concerned, as indicated above, it is
not even the case of the Election Petitioner in the Election Petition that the
Respondent No.4 has indulged in any corrupt practice and therefore the
question that begs an answer as to how in the absence of any pleadings, the
Trial Court could have framed the said issue. In so far as qualification to
contest the election is concerned, the same would be part of the aspect as to
whether noncompliance of the directions of the State Election Commission
would amount to a disqualification to contest the elections. Hence having
regard to the issues framed, the same can be said to be not in consonance with
the pleadings of the parties. It is therefore not possible to gloss over the said
aspect by holding that though proper issues were not framed, since the parties
knew what they were litigating at the order passed by the Trial Court is not
vitiated.
16 It is required to be noted that though an application for
amendment Exhibit51 filed by the Election Petitioner was rejected the
Election Petitioner has filed his affidavit of evidence and in the said affidavit
has mentioned the criminal cases and given the details of the criminal cases
allegedly pending against the Respondent No.4. It is required to be noted that
in respect of the said information, it is stated by the Election Petitioner in his
affidavit of evidence that the said information he has got from one Shri
Madhav Kishanrao Jagtap – the Assistant Election Officer. Pertinently the said
Shri Madhav Jagtap has not been examined by the Election Petitioner. It is in
the said context that the learned counsel appearing for the Petitioner herein
Shri B D Joshi submitted that it is one more circumstance where the evidence
has been allowed to be led dehors the pleadings. Hence an issue in that regard
was also required to be framed.
17 Now coming to the judgments cited on either side i.e. the
judgments cited in Madhav Singh's case, in Azar Hussain's case, Dhartipakar
Madan Lal Agarwal's case, in Samar Singh's case and lastly in Satish
Mahadeorao Uke's case (supra) by the learned counsel for the Petitioner
herein Shri B D Joshi in support of his contention that the Election Petition is
lacking in material particulars and therefore is required to be dismissed on the
said ground, as also the judgments in Krishnamoorthy's case, Nedunuri
Kameswaramma's case and in Shaik Mohd. Umar Saheb's case cited by the
learned Senior Counsel appearing of the Election Petitioner Shri S M
Gorwadkar, are concerned, it is not necessary for this Court to go into the
applicability of the said judgments at this stage having regard to the final
directions that this Court is inclined to issue in the above Petitions.
The learned counsel for the Respondent No.4 Shri B D Joshi
vehemently urged that the impugned order is required to be set aside and the
Election Petition is required to be dismissed on the ground of lack of material
particulars or facts in terms of the law laid down by the Apex Court in the
Judgments (supra) cited by him. It is not possible to accept the said contention
of the learned counsel for the Respondent No.4 in the absence of the matter
being examined by the Trial Court from the said angle, by framing an issue in
that regard and answering the said issue.
18 It is also not possible to accept the contention urged on behalf of
the Election Petitioner by the learned Senior Counsel Shri S M Gorwadkar that
assuming that in respect of criminal cases, material particulars are not pleaded
but the fact remains that the Election Petitioner has kept blanks in the affidavit
and therefore in terms of the law laid down by the Apex Court in
Krishnamoorthy's case (supra), the order passed by the Trial Court against the
Respondent No.4 can be sustained. In so far as the said contention is
concerned, the said exercise would have to be carried out by the Trial Court
and an issue would have to be framed in that regard, it is not possible for this
Court to record a finding that though the Election Petition lacks in material
particulars in respect of the alleged criminal cases against the Respondent
No.4, nevertheless the Respondent No.4 is required to be unseated on account
of the blanks that he has kept in the affidavit. Since such an issue was not
framed and answered, it is not possible to accept the said contention.
19 In so far as the contention of the learned Senior Counsel Shri S M
Gorwadkar for the Election Petitioner, that though the issues framed may be
defective but since the parties knew what they were litigating at, the order is
not vitiated on the said ground in support of which reliance was placed on the
judgment of Shaik Mohd. Umar Saheb's case (supra). In the instant case it is
required to be noted that it is not one or two issues which were not properly
framed, but the instant case is a case where basic issues arising out of the
pleadings have not been framed. The most important issue being whether the
Election Petition lacks in material particulars. Though the learned counsel
appearing for the Petitioner herein (i.e. Respondent No.4) Shri B D Joshi
sought to give justification for keeping the blanks or not giving the information
in respect of the criminal cases that were allegedly pending against the
Respondent No.4, it is not necessary for this Court to go into the said aspect at
this stage. In my view in the instant case on account of the fact that proper
issues were not framed by the Trial Court, the same has affected a proper
disposal of the Election Petition, and thereby resulting in a failure of meeting
out proper justice to the parties. The impugned order dated 06/10/2015
therefore stands vitiated on the ground that proper issues were not framed.
20 The finding recorded by the learned Principal Judge of the Small Causes
Court, Pune cannot be independently taken so as to come to a conclusion that
the Respondent No.4 has fallen foul of the statutory mandate and unseat the
Respondent No.4 in the absence of any issue/issues framed in that regard. The
exercise of considering the findings recorded by the Trial Court and then
referring it to issue or issues would be like putting the cart before the horse.
The said aspect is required to be considered in the context of the fact that in an
Election Petition the standard of proof is different than one in a Civil Suit
which is based on a preponderance of probabilities. During the course of
hearing of the above Petitions, it was suggested to the learned counsel for the
parties that to avoid delay in disposal of the Election Petition, the issues can be
reframed with the consent of the parties and that the Trial Court may be
directed to decide the said issues on the basis of the material both
documentary as well as oral which is already on record. Though the learned
counsel appearing for the Respondent No.4 Shri B D Joshi had shown some
inclination, the said suggestion was not acceptable to the learned Senior
Counsel Shri S M Gorwadkar for the Respondent No.2 herein (i.e. the Election
Petitioner). This Court was therefore left with no alternative but to carry out
the said exercise itself. For the reasons aforestated, the impugned order dated
06/10/2015 is required to be quashed and set aside, and is accordingly
quashed and set aside, and the Election Petition is remanded back to the Trial
Court for a denovo consideration of the same. The issues framed by the Trial
Court would stand set aside and would stand substituted by the following
issues :
[i] Whether Election Petition No.9 of 2012 suffers from nondisclosure
of material particulars or facts and is therefore required
to be dismissed on the said ground?
[ii] Whether nonfilling of the information in the affidavit to be filed
along with the nomination can be a ground for challenging an
election under Section 16 of the Bombay Provincial Municipal
Corporation Act, 1949?
[iii] Whether there was wrongful acceptance of the nomination of the
Respondent No.4 to the Election Petition and thereby the election
to Ward No.44 B, Hadapsar, Pune has been materially affected ?
[iv] Whether the evidence in respect of the criminal cases could have
been accepted in the absence of any pleadings ?
[v] Whether the Respondent No.4 to the Election Petition can be
unseated for keeping blanks in respect of the bank account and for
mentioning wrong PAN Card number?
[vi] Whether the Respondent No.4 to the Election Petition is required
to be unseated as a Corporator from Ward No.44 B, Hadapsar,
Pune ?
[vii] Whether the Election Petitioner proves that he is entitled for a
declaration as a elected candidate of Ward No.44 B, Hadapsar,
Pune in place of the Respondent No.4 to the Election Petition ?
The above reframed issues are exhaustive and no further issues
are required to be framed, since the reframed issues are to be tried on the
basis of the material which is already on record.
21 The instructions issued by the State Election Commission on
15/03/2004 and the subsequent order dated 07/07/2008 would be taken on
record by the Trial Court and marked as Exhibits.
22 Since the impugned order unseating the Petitioner is set aside, the
Trial Court is directed to hear and decide the said Election Petition in terms of
the issues now framed latest by 31/08/2016. It is clarified that the Trial Court
would decide the said issues on the basis of the existing material and evidence
on record. Needless to state that the contentions of the parties are kept open
for being urged before the Trial Court. Further needless to state that the
Election Petition would be tried on its own merits and in accordance with law
uninfluenced by the observations, if any, made in the instant order. However,
no bye elections to be held to the said Ward No.44 B, Hadapsar, Pune pending
consideration of the Election Petition on remand.
23 Writ Petition No.11334 of 2015 is allowed to the aforesaid extent.
Rule in Writ Petition No.11334 of 2015 is accordingly made absolute. In view
of the order as above disposing of Writ Petition No.11334 of 2015, Civil
Application No.3379 of 2015 does not survive and the same to accordingly
stand disposed of as such.
24 In so far as Writ Petition No.10730 of 2015 is concerned, in view
of the fact that the impugned order is set aside and the matter is relegated
back to the Trial Court for a denovo consideration, the said Writ Petition
No.10730 of 2015 has turned infructuous and is accordingly disposed of as
such. Rule in Writ Petition No.10730 of 2015 to accordingly stand disposed of.
25 At this stage, the learned Senior Counsel appearing for the
Respondent No.2 herein (i.e. the Election Petitioner) Shri S M Gorwadkar seeks
stay of the instant order for a period of four weeks from date. The learned
counsel appearing for the Petitioner herein (i.e the Respondent No.4) Shri B D
Joshi opposes the same. In the facts and circumstances of the present case, the
instant order is stayed for a period of four weeks from date.
[R.M.SAVANT, J]
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