IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. O.O.C.J. O.O.C.J. ELECTION PETITION No. 11 of 2004. ELECTION PETITION No. 11 of 2004. ELECTION PETITION No. 11 of 2004. Narayanrao Baburao Pawar, residing at Pot Wadgaon, Ghenand, Taluka Khed, District Pune. .. .. Petitioner. Petitioner. Petitioner. Vs. 1. Dilip Dattatraya Mohite residing at Post Shel Pimpalgaon, Taluka Khed, District Pune. 2. Sanjay Eknath Darandale, residing at Post Chakan, Taluka Khed, District Pune. 3. Shantaram Alias Appasaheb Kondiba Pawar,residing at Post Vaki Khurd, Taluka Khed, District Pune. 4. Vitthal Navaji Rokade, residing at Post Rakshewadi (Rajgurunagar), Taluka Khed, District Pune. 5. Bhagwanta Devaka Supe, residing at Wada, Taluka Khed, District Pune. ..Respondents. ..Respondents. ..Respondents. Mr V. T. Tulpule with Mr B.D.Joshi for the Petitioner. Mr Sagar Kasar i/b Mr H. E. Palwe for Respondent No.1. CORAM: V.C.DAGA,J. CORAM: V.C.DAGA,J. CORAM: V.C.DAGA,J. 17th June, 2008. 17th June, 2008. 17th June, 2008. JUDGMENT: JUDGMENT: JUDGMENT: -------- -------- -------- 1. This Election Petition, filed under Section 100 of the Representation of Peoples Act, 1951 (The Act of 1951), is at the instance of the defeated candidate, Mr Narayanrao Baburao Pawar, challenging the election of Respondent No.1 - Mr Dilip Dattatraya Mohite, who was declared elected to the Maharashtra Legislative Assembly from 242 Khed-Alandi Assembly Constituency, District Pune, Maharashtra State ("the said Constituency" for short) in the election held on 13th October, 2004, alleging non-compliance of the provisions of the Constitution and the Act of 1951, Rules and Orders made thereunder. 2. The petitioner has sought declaration that the result of election which was declared on 16th October, 2004 be declared as null and void on the ground that the Respondent No.1 and other persons with the consent of Respondent No.1 have committed corrupt practises as defined under Section 123 (1) of the Act of 1951 and prayed for setting aside election of Respondent No.1 and that he be ( 3 ) declared as an elected candidate from the said Constituency. 3. On being served with notice of the Petition, the Respondent No.1 appeared and filed his written statement on 30th June, 2005 opposing petition on various factual as well as legal grounds and prayed for dismissal of the petition with costs. 4. The draft issues tendered by the parties to the Petition were considered and settled by an order dated 31st March, 2006. reading as under: ISSUES:- ISSUES:- ISSUES:- ------- 1. Whether the Petitioner proves that the respondent no.1 has suppressed important material information by filing affidavit alongwith his nomination form and has failed to comply with the mandatory provisions of law? 2.Whether the petitioner further proves that because of the filing of the defective and incomplete affidavit the election of Respondent No.1 is materially affected? 3. Does the Petitioner prove that Respondent No.1 and his agents with the consent of Respondent No.1 had arranged ( 4 ) for mass free feeding for the voters of the said Constituency after the Election Meeting of Respondent No.1 held on 8th October,2004 at the Dehene, Taluka Khed, District Pune? 4. Whether the Petitioner further proves that because of the free mass feeding arranged by Respondent No.1, the Election of Respondent No.1 is materially affected? 5. Whether the Petitioner proves that in the Election Meeting of Respondent No.1 held on 8th October, 2004 at village Dehene, Taluka Khed, District Pune made a false and misleading statement regarding the manner of pressing the button on the Electronic Voting Machine, as stated in para 9 of the Petition? Whether the Petitioner further proves that because of false and misleading statements the Election of Respondent No.1 is materially affected? 6. Does the Petitioner proves that in the Election meeting of Respondent No.1 held on 10th October, 2004 at market place, Rajgurunagar, Shri Sharad Pawar, Leader of N.C.P. and Central Minister of Agriculture made a declaration of policy in order to induce the voters of the said Constituency to vote for Respondent No.1 with the consent of Respondent No.1 as stated in para 10 of the Petition? 7. Whether the Petitioner proves that during the election period, the Respondent No.1 from his own funds erected nine electric poles and electric wiring was put up on the said poles at village Dohre, Bhamburwadi as stated in para 11? 8. Whether the Election Petition is liable to be dismissed on the grounds of non compliance of rules of procedure as ( 5 ) mentioned in paras 1,4 and 5 of the written statement? 5. The parties to the Petition were also directed to produce list of witnesses and file affidavits of documents on or before 12th April, 2006. The affidavits of documents filed by the parties were taken on record. 6. The Petitioner was called upon to file affidavit of evidence, from time to time, right from July, 2006 which was, ultimately, filed on 17th November, 2006, however, he did not enter witness box. 7. The Petitioner examined one Gajanan Patil, Sub-Divisional Officer, Khed (P.W.1) who produced two original cassettes bearing Nos. 11 and 12 recorded during the election of the said Constituency which were marked as X-1 and X-2 for identification and kept in a sealed cover. In addition to this witness, one Mr Sunil Murlidhar Bawiskar was examined as P.W.2, whereas, one more witness Mr Sushil s/o Vitthalrao Manjare was examined as P.W.3 to prove the cassettes produced by Mr Gajanan ( 6 ) Patil, Sub Divisional Officer, (P.W.1). But during the course of evidence, discrepancy in the date of meeting was noticed by the Petitioner, as such, he prayed for adjournment to enable him to move an application for amendment. The petition was, thus, adjourned to 24th April, 2007. The application for amendment made was allowed on 8th August, 2007. 8. The Petition, after the above amendment, was adjourned, from time to time, to enable the Petitioner to examine Mr Vitthalrao Manjare, (P.W.3) since his examination-in-chief was half way. Witness summons was issued to him to appear before the Court on 20th November, 2007. He did not appear for want of service. Again, witness summons was ordered to be issued to him on 24th January, 2008 returnable on 27.2.2008. However, no steps were taken by the Petitioner, either to serve witness summons on Shri Vitthalrao Manjare nor he was produced by the Petitioner in the Court for his further examination-in-chief, though Petition was adjourned, from time to time, for recording ( 7 ) his evidence. The Petitioner,thus, failed to produce his evidence and witnesses. 9. This Court faced with the above scenario and reluctance on the part of the Petitioner to assist this Court in expeditious disposal of this Petition was required to record this fact in the order sheet dated 17.4.2008, which reads as under: . "The learned counsel for the petitioner has furnished list of witnesses out of which persons appearing at Sr Nos. 1 and 2 have already been examined. The learned Counsel Shri Joshi submits that the persons figuring at Serial Nos. 4, 5, 6 and 7 can be produced by the petitioner without there being any witness summons from this Court. However, he submits that so far as persons appearing at Sr Nos. 3 and 8 are concerned, witness summons would be required. So far as the Registrar of the High Court is concerned, the question of issuance of witness summons is deferred since the learned counsel appearing for the petitioner states that he would apply for the certified copies of the said proceedings and file it and give notice to admit documents to the respondent. After receipt of the reply from the respondent question of issuance of witness summons to the Registrar would be dealt with. Issue summons to Shri Vitthalrao Manjre and Shri Manik Mahadeo Dambhore whose names appear at Sr. Nos. 3 and 8 returnable on 2.5.2008. Hamdast allowed. In addition to Hamdast, service by R.P.A.D. is permitted. The learned counsel for the petitioner is permitted to give intimation by R.P.A.D. Witnesses be put ( 8 ) on notice that failure on their part to appear before the Court, stringent view of the matter would be taken since Mr Sunil Vitthalrao Manjre was absent on the last date of hearing inspite of service of the witness summons. The learned counsel appearing for the respondent is also put on notice that no further adjournment would be granted. Both parties are expected to be ready with their respective cases to proceed with the Election Petition. The list of witnesses submitted by the Respondent No.1 is taken on record. By the next date of hearing if the certified copies are available, the learned counsel for the petitioner is permitted to file on record with notice to admit documents to the respondent which the respondent is expected to reply within one week thereafter. Stand over to 2nd May, 2008." 10. The above petition, as ordered, appeared on board on 2nd May, 2008. The Petitioner was absent. Even, Mr Sunil Vitthalrao Manjare (P.W.3) was absent. Advocates appearing for the Petitioner produced medical certificate to justify inability of the Petitioner to remain present in the Court and expressed their helplessness for want of co-operation or assistance from the Petitioner to serve witness summons on the witnesses. This Court, thus, had no option but to record this fact in the order sheet dated 2nd May, 2008 which reads as under: ( 9 ) "1.Heard. Perused record. 2. This petition is pending since 2004. It was adjourned from time to time for seeking presence of the witnesses. 3. On 24th October, 2007, the witness summons was issued to one Mr.Sunil Vithalrao Manjre (whose evidence is part-heard) making it returnable on 28th November, 2007. He did not appear. 4. By another order dated 24th January, 2008 again witness summons was issued to Mr.Manjre with direction to appear before this Court on 27th February, 2008. Neither the said witness Mr.Manjre nor the petitioner appeared before this Court on the date fixed. Again on 17th April, 2008 directions were given and witness summonses were issued to Shri Vitthalrao Manjre and Shri Manik Mahadeo Dambhore returnable on 2nd May, 2008. Hamdast service was permitted. In addition to hamdast service, service by R.P.A.D. was also permitted. The parties were put on notice that failure on their part to appear before the Court, strict view of the matter would be taken. Considering continuous absence of the petitioner and his witnesses, parties were also put on notice that no further adjournment would granted. That is how, this petition is placed on board today for evidence. Today, nobody is present. The petitioner is absent. His witnesses are absent. Even respondents are also absent though their respective advocates are present expressing their helplessness to proceed with the petition for want of parties to the petition. 5. The petitioner seems to be negligent in prosecuting his petition. In spite of order dated 17th April, 2008, the petitioner has for the first time issued ( 10 ) R.P.A.D. notice to the witnesses on 25th April, 2008 i.e. after expiry of one week from the date of the order. The hamdast packets containing witness summonses were lifted by the advocate appearing for the petitioner but no steps were taken to effect service of the witness summonses on the witnesses since the hamdast envelopes are still in the hands of the advocate appearing for the petitioner. 6. The learned counsel for the petitioner states that the petitioner is taking Panchkarma Treatment and advised to take rest for 15 days. The medical certificate produced by him does not inspire judicial confidence, apart from the fact that, for taking Panchakarma Treatment the patient is not required to be admitted in the hospital. Thus, looking to the casual approach and reluctance on the part of the petitioner coupled with failure to take adequate steps to keep the witnesses present in the Court, I am left with no alternative but to close the evidence of the petitioner. However, by way of last chance I am adjourning this matter for a period of four weeks to enable the petitioner to effect service on the witnesses and to take appropriate steps to keep them present on the next date of hearing. However, this adjournment shall be subject to payment of costs of Rs.20,000/- to be deposited by the petitioner in this Court within one week from today. Learned counsel for respondent No.1 states entire costs be credited to the account of Legal Services Committee of this Court since respondent No.1 is not interested in claiming the same. The registry is, therefore, directed that in the event of deposit of costs amount of Rs.20,000/- by the petitioner, the amount be transferred to the account of Legal Services Committee of this Court. Payment of costs shall be condition precedent. ( 11 ) 7.Parties are again put on notice that no further adjournment would be granted. If the petitioner fails to produce witnesses on the next date of hearing, this Court would be left with no other option but to close the evidence of the petitioner side. It would be open for the petitioner to get the returnable date changed on the witness summonses of which sealed packets their advocates are holding in the form of hamdast. 8. Stand over to 6th June, 2008 for evidence of the petitioner and to report compliance of this order." 11. The above petition which was adjourned subject to cost of Rs. 20,000/- again appeared on board on 6th June, 2008 which compelled this Court to close evidence of the Petitioner by recording order sheet reading as under: "1. In spite of the specific order dated 2nd May, 2008 neither the Petitioner is present nor the witness. Counsel appearing for the Petitioner submits that even the witness summons could not be served since the Petitioner did not approach his advocate who is on the record. The Petitioner has also not deposited the amount of cost saddled on the Petitioner by the order dated 2nd May, 2008. 2. Counsel appearing for the Petitioner submits that looking to the scenario, it would be open for the Court to dismiss the Petition in default. However, I do not think it proper to dismiss the Petition in default. I would prefer to ( 12 ) close the evidence of the Petitioner. Counsel appearing for Respondent No.1 makes a statement that Respondent No.1 also does not want to lead any evidence. 3. Nobody is present on behalf of Respondent Nos.2, 3, 4 and 5. Counsel appearing for the Petitioner submits that he does not want to advance any arguments in support of the Petition. Counsel appearing for Respondent No.1 also submits that he does not want to make any submissions on the merits of the Petition. 4. In view of the aforesaid scenario, the Election Petition is closed for judgment." 12. This Court is now left with no alternative but to decide this Petition on the basis of evidence available on record. CONSIDERATION CONSIDERATION CONSIDERATION: -------------- 13. The burden of issue Nos. 1 to 7 rests on the Petitioner. The Petitioner has not produced any evidence in support of either of the issues. He neither examined himself nor offered himself for cross-examination. He did not examine his witness P.W.3. His evidence remained incomplete. No steps were taken either to serve witness summons or to keep the said witness present in the Court for being examined on oath. The Petitioner did not even ( 13 ) pay amount of the amount of costs saddled on him. 14. In the above circumstances, I have no option but to hold that none of the issues of which burden lay on the Petitioner, is proved by him. The Petition deserves to be dismissed on merits with costs quantified in the sum of Rs. 25,000/- to be paid by the Petitioner to the Respondent No.1, in addition to the costs of Rs. 20,000/- already saddled by this Court vide order dated 2nd May, 2008. 15. In the result, the Petition is dismissed in terms of this order with costs as quantified. JUDGE. JUDGE. JUDGE.