IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ELECTION PETITION NO.7 OF 2004 Kuldeep Pednekar, Indian Inhabitant residing at Post Kunakeshwar, Talewadi, Taluka Deogad, District Sindhudurg. ...Petitioner VERSUS 1. Ajit Pandurang Gogate, Indian inhabitant, residing at Post Jamsande, Taluka Deogad, Dist Sindhudurg. 2. Sudhakar Shantaram Mangaokar, Indian Inhabitant, residing at 533, Bharad Malwan, Taluka Malwan, Dist. Sindhudurg. 3. Daulat Atmaram Joshi, Indian Inhabitant, residing at Munage, Adbandar, Taluka Deogad, Dist. Sindhudurg. 4. Mahesh Vithoba Juwatkar, Indian Inhabitant, residing at Palye, Wada, Taluka Deogad, Dist. Sindhudurg. 5. Mahendra Natekar, Indian Inhabitant, residing at Kalmath, Guravwadi, Taluka Kankavali, Dist. Sindhudurg. 6.Sunil Sarvankar, Indian Inhabitant, residing at Wanewade, Taluka Deogad, Dist. Sindhudurg. ...Respondents ...... Mr.V.T.Tulpule with Ms.Nitya Mehta with Mr.Pankaj Kowli i/b Nitya Sunil & Associates for Petitioner. : 2 : Mr.Balkrishna D.Joshi with Ms.Pushpa Diwan with Mrs.Anjali Helekar for Respondent No.1. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. FEBRUARY 3, 2006. FEBRUARY 3, 2006. FEBRUARY 3, 2006. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This Petition is filed for declaration that the election of the Respondent No.1 as candidate from ‘04’ Deogad Assembly Constituency in the general election of the Maharashtra Legislative Assembly held on 13th October 2004 as Official candidate of the Bhartiya Janata Party (hereinafter referred to as ‘BJP’) representing the alliance of Shivsena-BJP, be declared illegal, null and void. 2. The notice in Form No.1 declaring the Election programme was published on September 15, 2004. The date of filing nomination was from 15th September 2004 till 22nd September 2004. The scrutiny of nomination was to be undertaken on 23rd September 2004 and the list of valid candidates after due scrutiny was to be published thereafter. : 3 : Under the said Notification, date of withdrawal of nomination was 25th September 2004. On that date, besides the Petitioner, the six Respondents herein remained in the fray for polling to be held on 13th October 2004 between 7.00 a.m. to 5.00 p.m. The counting of votes in terms of Notification was held on 16th October 2004 when the Respondent No.1 was declared as elected candidate from the said Constituency by the Returning Officer. The total votes polled as per the results declared by the Returning Officer are stated to be 87,789. The Petitioner secured 41,312 votes; whereas, the Respondent No.1 who was declared as Returned Candidate secured 42,384, elected by margin of 1072 votes. The other five candidates secured nominal votes ranging from 262 to 1,824. 3. The present Election Petition has been filed by the defeated candidate in this Court on 30th November 2004. The Petitioner was the official candidate of the ‘Nationalist Congress Party’ (NCP) repersenting alliance of ‘Congress (I) - NCP - RPI Front". By this Petition, the Petitioner challenges the election of the : 4 : Respondent No.1 on the various grounds, amongst others, corrupt practice. After notice was issued to the Respondents, the Respondent No.1 who is the returned candidate, filed written statement. In the written statement, preliminary issue has been raised that Election Petition deserves to be dismissed within the meaning of Section 86(1) of the Representation of the People Act, 1950 (hereinafter referred to as ‘the Act’). In view of the pleadings filed, by order dated December 21, 2005, I formulated two issues being issues of law to be decided as preliminary issues. The same read thus: "(1) Whether the Election Petition deserves to be dismissed within the meaning of Section 86(1) of the Act, as the copy of the Election Petition served on the contesting Respondent is not a true copy thereof? (2) Whether averments in the Election Petition are devoid of material facts and particulars, as a result of which, fails to disclose cause of action on account of which, same deserves to be dismissed within the meaning of Section 86(1) read with Section 83 and 81 of the Act? 4. I propose to deal with the second issue : 5 : first. The question is: whether the Election Petition as presented, will have to be dismissed within the meaning of Section 86(1) of the Act, as the same is devoid of material facts and particulars and fails to disclose cause of action? The attempt of the Petitioner on the other hand is to persuade me to take the view that the grievance of the Respondent No.1 even if accepted as it is, it would, at best, mean that the Petition lacks details or particulars in relation to the allegations on the basis of which the election of Respondent No.1 is to be declared as illegal, null and void; that defect can be cured by the Petitioner with the permission of the Court consistent with the provision in Section 86(5) of the Act. It was argued that even if the Petition does not contain some material facts in relation to the allegations on the basis of which the election will have to be voided, that cannot be the basis to dismiss the Election Petition by taking recourse to provisions of Section 86(1) of the Act. I shall straightaway deal with these submissions. 5. The scheme of Section 86(1) of the Act : 6 : mandates that the election petition shall be dismissed by the Court, if it does not comply with the provisions of Section 81 or Section 82 or Section 117. In other words, Section 86(1) obligates the Court to dismiss the Election Petition on account of non-compliance of Section 81 of the Act. Sub-section (1) of Section 81 of the Act provides for filing of Election Petition within specified time. This provision is not invoked by the Respondent No.1 in the present case. Similarly, neither ground of non-compliance of Section 82 or Section 117 is pressed by the Respondent No.1. That leaves us with the non-compliance of Section 81(3) as the ground for dismissing the Petition under Section 86 of the Act. That provision provides that every "Election Petition" shall be accompanied by as many copies thereof as there are Respondents mentioned in the Petition and every such copy shall be attested by the Petitioner under his own signature to be a true copy of the Petition. Indeed, Section 86(1) makes no reference to the situation that if the election petition is devoid of material facts, the same can be dismissed. However, by now, it is well : 7 : established that if the Election Petition lacks material facts on which the Petitioner relies, the same ought to be dismissed in exercise of powers under Section 86(1) of the Act read with provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’). That is so because Section 81 refers to "an election petition". Section 83 provides for the contents of an Election Petition. If the Petition does not conform to the requirements of Section 83, in particular, sub-section (1)(a) namely, lacks material facts, in that event, the Petition as filed cannot be allowed to proceed for want of cause of action; for it is not open to the election petitioner to improve upon that deficiency after the expiry of the period of limitation specified in sub-section (1) of Section 81 of the Act. In other words, even though Section 86(1) makes no reference to Section 83(1)(a) as such, even so, the Election Petition, if it fails to set forth "all the material facts" on which the Petitioner relies so as to disclose the cause of action, such Petition will have to be thrown out at the threshold. That power is not only to be : 8 : exercised with reference to Section 86(1) of the Act, but also flows from provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’), which obligates the Court to throw out the Petition at the threshold if the same does not disclose cause of action. There are catena of decisions of the Apex Court to fortify the above legal position. It will be useful to refer to the statement of law expounded in the decision of the Apex Court in Azhar Hussain vs. Rajiv Gandhi reported in AIR Azhar Hussain vs. Rajiv Gandhi reported in AIR Azhar Hussain vs. Rajiv Gandhi reported in AIR 1986 SC 1253 1986 SC 1253 1986 SC 1253, which restates the legal position that the Election Petition ought to be dismissed at the threshold for non-compliance of provisions of Section 83 for failure to incorporate in the Petition all the material facts and particulars relating to alleged corrupt practices to disclose the cause of action, by invoking powers under the Code; further, it is settled law that omission of a single material fact would lead to an incomplete cause of action relating to charge of corrupt practice and such election petition is not an election petition at all. : 9 : 6. In another decision of the Apex Court in the case of Lalit Kishore Chaturvedi vs. Jagdish Lalit Kishore Chaturvedi vs. Jagdish Lalit Kishore Chaturvedi vs. Jagdish Prasad Thada & Ors. reported in AIR 1990 SC 1731 Prasad Thada & Ors. reported in AIR 1990 SC 1731 Prasad Thada & Ors. reported in AIR 1990 SC 1731, it is observed that if the Petition does not conform to the requirements of Section 83, the Petition is liable to be dismissed under Order VII Rule 11 of the Code. It is not necessary to multiply authorities to buttress the above legal position. The question is: whether the Petition as filed discloses complete cause of action? It is well established that bundle of facts constitute cause of action. It is also well established that there is distinction between "material facts" and "particulars". Counsel for the Petitioner has rightly placed reliance on the decision of the Apex Court in the case of Sardar Harcharan Singh Brar Sardar Harcharan Singh Brar Sardar Harcharan Singh Brar vs. Sukh Darshan Singh & Ors. reported in 2004 vs. Sukh Darshan Singh & Ors. reported in 2004 vs. Sukh Darshan Singh & Ors. reported in 2004 (7) Supreme 721 (7) Supreme 721 (7) Supreme 721, which has restated the legal position culled out from several decisions on the point. In Para 11 of the said reported decision, reference is made to earlier three Judges’ Bench decision in Mahindra Pal’s case reported in 2000 Mahindra Pal’s case reported in 2000 Mahindra Pal’s case reported in 2000 (1) SCC 261 (1) SCC 261 (1) SCC 261. The extract from that Judgment is reproduced in Para 11. It is observed by the Apex : 10 : Court therein that whether in an election petition, a particular fact is material or not and as such required to be pleaded is a question which depends upon the nature of the charge levelled and the facts and circumstances of each case. The Court then went on to note the distinction between "material facts" and "particulars". It is observed that facts which are essential to disclose a complete cause of action are material facts and are required to be pleaded. On the other hand "particulars" are details of the case set up by the party and are such pleas which are necessary to amplify, refine or explain material facts. It is also noted that failure to give even a single material fact leads to incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order VI Rule 16 of the Code. 7. Accordingly, the next enquiry that will have to be undertaken is: whether the averments in the Election Petition plead all the relevant material facts to disclose cause of action. To consider this controversy, we will have to revert : 11 : to the contents of the present Election Petition. 8. The first ground on which the Petitioner seeks declaration that the election of Respondent No.1 is illegal, null and void is on account of Respondent No.1 filing false and misleading affidavit. This ground is essentially highlighted in Paras 7 to 18 of the Election Petition. The question is: whether the election of Respondent No.1 can be declared to be void on the ground of filing false or incorrect affidavit before the Returning Officer. To consider this question, we will have to advert to the grounds on which election of the returned candidate, can be declared to be void, as specified in Section 100(1) of the Act. The first amongst them, is that, in the opinion of the High Court on the date of the Election of the returned candidate, he was not qualified or was disqualified to be chosen to fill the Seat under the Constitution or the Act of 1951 or the Government of Union Territories Act, 1963. The question that will have to be considered is: whether the Election Petition invokes this ground for declaring the Election of the Respondent No.1 : 12 : as void? I shall presently address this issue after referring to the relevant paragraphs, which read thus: "7. On 20th September, 2004, the respondent no. 1 filed his nomination along with an affidavit in the prescribed form. The respondent no. 1 was under an obligation to disclose all his liabilities towards government dues as on date of filing his nomination as required by presented format of the said affidavit. The particulars of the dues owing by respondent no. 1 are set out in letter dated 20th October, 2004. A copy whereof is annexed to the petition. The respondent no. 1 was not entitled to conceal or suppress any fact or give false information. The affidavit accompanying the nomination paper is integral part of nomination paper. 8. Filing of a false affidavit could and must lead to rejection of nomination paper. Filing of a false affidavit accompanying the nomination paper amounts to a criminal offence and is punishable under representation of people Act 1951. At the relevant time, the petitioner did not know the fact that the respondent no. 1 was infact indebted to Government and there were infact outstanding government dues to the extent of Rs. 9,196/-. It is now proved as a fact as held by the Chief Election Officer, duly forwarded to Tehsildar that the respondent no.1 did file a false affidavit along with his nomination by concealing the above fact and by stating that no government dues were outstanding. The relevant facts were within the knowledge of respondent no. 1. The : 13 : fundamental right of information guaranteed under Article 19[1] [a] of the Constitution was infringed by respondent no. 1 by concealing relevant information from the returning officer as aforesaid. The format of the affidavit presented by statutory authority is mandatory. In view of the affidavit being false as aforesaid, this Hon’ble Court be pleased to hold that the respondent no. 1 did not file valid nomination and the nomination be treated as if unaccompanied by an affidavit. The petitioner submits on this ground alone, the election of respondent no.1 is liable to be declared void and the petitioner is entitled to declaration to the effect that the petitioner is elected as M.L.A. from the said constituency. The petitioner relies on order NO.3/ER/2003/JS-II dated 27th March, 2003 and orders issued by District Election Officer. The Petitioner craves leave to refer to and rely upon the same as and when produced. 9. Now a short history of the Petitioner and his works put in, in the 04-Deogad Constituency since 20 years and has done tremendous work in the constituency knowing full well that it is difficult for the Respondent No. 1 to equate the quantum of work done by the Petitioner, the Respondent No. 1 resorted to various corrupt practices through himself and his agent and/or through any other person, in the present election. 10. The Petitioner hails from the village Kunkeshwar, Taluka Deogad of the District Sindhudurg, which comes in the said 04-Deogad despite coming from a poor family of a farmer, the Petitioner has taken tremendous pains and completed his education to become a qualified engineer. Thereafter with his hard work and friendly nature, very soon he became a successful businessman. For last over 20 years the petitioner is actively participating in : 14 : social, charitable as well as political activities in Konkan Region more specifically in Mumbai and Deogad i.e. the present constituency, as a member and office bearer of the Congress Party and now the Nationalist Congress Party. In fact he is a Senior Party functionary and presently working as the Vice president of the Mumbai Pradesh Nationalist Congress Party. Earlier he has contested election of the Mumbai Municipal Corporation in 1985 as Congress [Socialist] Party candidate, formed under the leadership of Shri Sharad Pawar and was elected as a corporator from the Ward No. 35- ’Byculla’ Mumbai Municipal Corporation Constituency. Again he contested the next Mumbai Municipal Corporation election in 1992 from Ward No. 24 - ’Agripada’ Corporation Constituency, representing Congress [I] and won the same. He has completed the two consecutive terms as a Corporator of the Mumbai Municipal Corporation successfully. During his tenure as a Corporator the Petitioner was appointed has honoured the position such as member of Standing Committee Educational Committee, Law Committee and Improvements Committee of the Mumbai Municipal Corporation. He is widely known, loved and respected figure in Mumbai as well as in the said constituency. The Petitioner craves leave to refer to and rely upon the social works done by him in the Constituency described in the booklet. 11. The present constituency i.e. 04 - Deogad was a congress and socialist stronghold however sometimes in 1985 one Shri Janardan Moreshwar @ Appa Gogate of the Bartiya Janta Party [BJP], was elected from the said constituency for the first time wherein he secured 21,386 votes. Because of his clean image as well as the state level political fluctuations, Shri Appa Gogate retained his position in 1990 : 15 : by securing 41,126 votes. In 1995 Mr. Appa Gogate secured 51,352 votes and won the election. But gradually even Shri Appa Gogate adopted the well trodden road of all politicians and started promoting nepotism in the party as well as the constituency i.e. 04-Deogad Constituency, this created lot of displeasure in the voters of 04- Deogad Constituency as well as amongst the dedicated active workers and also the office bearers of the BJP. He however contested the Maharashtra Legislative Assembly Elections in 1999, but his votes were substantially reduced to only 23,268 votes compared to his 51,352 votes in 1995, in the said election of 1999 one more reason why Appa Gogate could retain his seat was, that there was a spilt in the Indian National Congress [INC] and the Nationalist Congress Party [NCP] was born out of it as a separate political party. The Petitioner craves leave to refer to and rely upon the said election results as and when produced. These both sects i.e. Nationalist Congress Party and the Nationalist Congress Party, of the split Congress, contested the elections against each other, resultantly dividing the original Congress votes. However, in the present election both the parties i.e. INC and NCP came together forming an alliance with the Republican Party of India [RPI]. 12. Now if we look at the scenario in the 04 - Deogad Constituency at the time of the present assembly election i.e. held in 2004, the situation was entirely in the favour of the Petitioner, firstly the voters were already dissatisfied with Appa Gogate as he wasn’t quite active due to his old age and secondly his tactics of nepotism were very much rejected by the people of 04 - Deogad constituency. Had the Congress not been divided the said Appa Gogate would have lost in the earlier 1999 Assembly election itself, but he : 16 : could somehow mange to retain the said seat, as both the sects i.e. INC and NCP once again came together and joined hands with the RPI in the present election the i.e. 2004, it was practically visible that whosoever would contest from Congress alliance in 04-Deogad Constituency would be definitely enjoying a upperhand over the Shiv Sena-BJP alliance. In such a situation when the candidatures of the Petitioner herein was declared as a candidate of INC/NCP/RPI alliance, it was a big jolt to the Respondent No. 1 and his party, for the simple reason that the Petitioner was enjoying one additional point that he belonged to ’Bhandari Community’ which is the major community in 04 - Deogad Constituency. 13. On this background the sitting MLA Appa Gogate was still adopting nepotism and was successful in securing the candidature for his nephew Ajit Gogate i.e. Respondent No. 1 as his successor in 04 - Deogad Constituency. It is pertinent to note here that looking at the displeasure about his working and his inactivity due to old age he hand declared voluntary retirement from the election fray. But as the Candidature of Respondent No. 1 i.e. nephew of sitting MLA Shri. Appa Gogate was declared there was a turmoil generated in the district BJP and many office bearers and active members of the BJP from the Deogad Constituency resigned en-mass protesting against the candidature of Respondent No. 1 to name some of the senior persons who protested against the candidature of Respondent No. 1 were 1. Madhav Bhandari [President, Sindhudurg District, BJP Committee] and 2. Mr. Navindrachandra Bandivadekar [Vice- President, Sindhudurg District BJP ] and also senior party leaders of BJP like Mr. Sudhir Joshi, Mr. Sada Ogle etc, was this less that the Janata Dal [Secular], a political Party, : 17 : which has a considerable following in the said constituency openly supported the Petitioner in 04-Deogad Constituency. Because of the cumulative effect of all these factors respondent no.1 started apprehending his sure defeat and hence he resorted to unfair means and corrupt practices since the very beginning of his campaign. 14. The Respondent No.1, despite being a practicing advocate adopted unfair means and corrupt practices from the word go. This was clear because he has knowingly furnished incorrect information regarding his liabilities payable to the Govt., Financial Institutions and /or, Govt. /Semi Govt. authorities in the mandatory affidavit submitted to the returning officer. This is for the simple reason that as per the procedure the said affidavit he is required to made public by the returning officer. The Respondent NO. 1 filed this affidavit on 20th September 2004 in prescribed alongwith his nomination as a candidate. Hereto annexed and marked as ’Exhibit A’ is the true translated copy of the nomination papers alongwith the Affidavit filed by the Respondent No. 1 dated 20th September, 2004. [a] In clause A [3] of the Para No. 3 of the affidavit of the Respondent No. 1 regarding Government dues, more particularly, sub-clause [b] thereof, against the dues in respect of the departments of water supply the Respondent No. 1 has mentioned dues as NIL which information is false and incorrect. The Petitioner craves leave to refer to and rely upon the document papers and proceedings in the criminal matter and of the department of : 18 : water supply as and when produced. 15. When the Petitioner learnt that the Respondent No. 1 has furnished incorrect information or has concealed the material particulars, he addressed a letter dated 19th October, 2004 to the Sub-Divisional Officer, Maharashtra Jeevan Pradhikaran, Deogad and requested to verify the correctness of the information furnished by the Respondent No. 1. The Petitioner received a letter from the Sub-Divisional Officer, Maharashtra Jeevan Pradhikaran Deogad dated 21st October, 2004, thereby placing on record, that as on 19th October, 2004, a sum of Rs.9,196/- (Rupees Nine Thousand One Hundred Ninety Six Only) was due and payable by the Respondent No. 1. Hereto annexed and marked as ‘Exhibit B’ is the copy of the true translation of the letter dated 21st October, 2004. The petitioner had therefore filed a complaint against the Respondent No. 1 with the District Election Officer and Collector, Sindhudurg. After hearing both