-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.5572 of 2007 Mr.Prakash Karkar ..Petitioner vs. 1. State of Maharashtra and others ..Respondents Shri B.D.Joshi with Shri Neel Helekar for petitioner., Smt.P.S.Cardozo, A.G.P. for respondent no.1. Shri Bipin Joshi for respondent no.2. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 14th March, 2008 14th March, 2008 14th March, 2008 P.C. P.C. P.C. 1. This Writ Petition under Article 227 of the Constitution of India is directed against the Order [passed by the court of Small Causes, Mumbai on 16.7.2007 in Municipal Election Petition No.48 of 2007. The order under challenge rejects the Application which was preferred by the present petitioner who is the Original Respondent no.3 to the /Election Petition. The petitioner/Applicant prayed that paras 3 to 6 of the Election Petition are liable to be struck off in exercise of the Court’s jurisdiction under Order 6 Rule 16 of the Code of Civil Procedure. Once these paras are liable to be struck off, then, the entire Election Petition is devoid of any cause of action and -2- therefore deserves to be dismissed by resorting to Order 7 Rule 11 of the CPC. 2. The Election Petition proceeds on the basis that the elections to the Mumbai Municipal Corporation were held in February, 2007.. The subject Ward is Ward No.6, Ambewadi, Oripada Constituency. The petitioner/respondent no.2 herein was the official candidate of Nav Nirman Sena. His Election symbol was Railway engine. The petitioner is Respondent no.3 to this Election Petition. He contested the election as Official candidate of Shiv Sena. His Election symbol was Bow and Arrow. The total votes polled were 18,275. The petitioner before me secured 8283 votes whereas the Respondnet no.2 secured 7192 votes. There are other candidates who are joined as respondents. The petitioner before me having secured the highest number of votes was declared elected on 2.2.2007. 3. Aggrieved by this election result, the Respondent no.2 filed the above Election Petition. 4. Paras 3 to 6 of the Election Petition read as under :- -3- "3. The petitioner states that in accordance with the Election Rules and provisions of the Bombay Municipal Corporation Act, 1888, the candidates are required to file their nomination Form in the prescribed manner, particularly in Schedule L. Accordingly, the Respondent no.3 filled in nomination form and the same has been verified on oaths. Hereto annexed and marked as Exhibit C is the copy of the Nomination Form of the Respondent no.3. In the prescribed format, it has been specifically mentioned that the candidate has to truelly declare the particulars of his moveable and immovable assets.s In Clause No.2(A), it is specifically mentioned that joint family property or joint property is also required to be declared by each candidate. In the present case, the Respondent No.3 has specifically mentioned that he does not have any agricultural property. 4. The petitioner states that the aforesaid nomination form was notarized on 12.1.2007. The petitioner submits that recently, he learnt that the respondent no.3 is having agricultural property at village Songaon, Taluka Khed, District Ratnagiri, being agricultural land admeasuring 5 Gunthas and 2 Gunthas, Khraba, both aggregating to 7 Gunthas being survey no.738, Hissaq No.16. The said property stands in the name of the Respondent no.3 along with Mr.Sitaram Krishna Karkar and Mr.Suresh Tukaram Karkar. Hereto annexed and marked as Exhibit D is the copy of the 7-12 extract. The extract no.8 also shows the name of the Respondent no.3 and duly assessed for agricultural lpurposeas. It is also clear from the extract no.6 that the aforesaid property was purchased by the respondent no.3 along with his two brothers for the valuable consideration of Rs.40,000/- under Sale deed dated 18.5.1999. Hereto annexed and marked as Exhibit E is the copy of the extract No.6. 5. In the circumstances mentioned -4- hereinabove, the Respondent No.3 has indulged in corrupt practices by mentioning incorrect statement in the nomination form as well as deliberately suppressing material facts about his having possessed of the aforesaid agricultural property, and therefore, the conduct on the part of the respondent no.3 is contrary to the provisions of the Bombay Municipal Corporation Act, 1888. The respondent no.3, therefore, is liable to be disqualified from acting as a Municipal Councillor on the aforesaid grounds. 6. The petitioner states that the Respondent No.3 has committed corrupt practices and as such his election is required to be declared as invalid, null and void. The petitioner submits that an enquiry be held in respect of the election of the aforesaid Ward No.6 and election of the Respondent No.3 be declared as invalid and the same be quashed. It is necessary proper and in the interest of justice that the Respondent No.3 be restrained by an order and injunction of this Hon’ble Court from functioning as Municipal Councillor of Ward No.6 and/or from drawing the allowances, utilising and/or recommending the utilization of the funds sanctioned by the Respondent no.2." 5. Upon these allegations the second respondent prayed that the Election of the present petitioner be declared as invalid, null and void. He also prayed that he being the second highest candidate, he should be declared as elected from Ward No.6. 6. After the summons was served, the present -5- petitioner filed a Written Statement and urged that the Election Petition is not disclosing any cause of action. It was contended that no case was made out for setting aside the elections under Section 33 of the Mumbai Municipal Corporation Act. After referring to Section 33 of the same, it was urged that the petition does not contain any grounds much less of corrupt practices. The material facts and particulars of the corrupt practices are also not set out. In such circumstances, the Election Petition was not maintainable. 7. In furtherance of the statements an application was made by the present petitioner and it was urged the rein that the election petition can be summarily dismissed if it does not disclose any cause of action. It was urged that omission of a single material fact would lead to an incomplete cause of action and election petition not disclosing the same is liable to be dismissed. In such circumstances, paragraphs 3 to 6 of the election petition be struck off and as no triable issue remains after the said paragraphs are struck off, the election petition itself be dismissed. -6- 8. The learned Trial Judge heard this application after respondent no.2 to this petition filed a reply thereto. 9. By the impugned order, the learned Judge held that the pleadings disclose that evidence will have to be led to prove as to whether respondent no.3, the present petitioner’s election is vitiated on account of the statement made while filling up the Nomination Form. The learned Judge concluded that whether this would finally result in the election being declared as invalid or not cannot be decided at this stage. The election petition must be tried for reaching such a conclusion. Concluding thus, he dismissed the petitioner’s application. 10. It is this order of the Trial Court which is impugned in this writ petition under Article 227 of the Constitution of India. 11. Shri Balkrishna D. Joshi learned Counsel appearing for the petitioner, returned candidate, contended that the order passed by the Trial Court is ex facie erroneous and vitiated. He submits that the learned Judge has failed to apply his mind to the pleadings in -7- this case. He has failed to notice that the Code of Civil Procedure would govern the trial of the election petition and Bombay Municipal Corporation Act does not rule out the applicability of the Code of Civil Procedure to the trial of the election petition. Once Code of Civil Procedure was applicable, then, order VI Rule 16 and Order VII Rule 11 were also applicable. Once they are so applicable, then, the learned Judge could not have refused to pass any order on the application. Further, the application alleges that the election petition discloses no cause of action. Inviting my attention to section 33 of the Bombay Municipal Corporation Act, 1888, Shri Joshi urges that the election petitioner in this case alleges non compliance with the requirement of making a proper and complete disclosure at the stage of filing of Nominations. That is not made a ground for challenging the election in the election petition under sec.33 of the B.M.C.Act. He submits that the election petitioner in this case, in paras 3 and 4, refers to the nomination form being filled in the prescribed manner (Schedule I). He further submits that respondent no.3 alleges that agricultural property which is more particularly described in -8- para 4 of the election petition has not been included or mentioned in the nomination form. Thus, there is not a complete and true disclosure of the movable and immovable assets. Shri Joshi submits that such non disclosure is no ground to challenge and set aside the election. 12. He submits that in para 5 of the election petition, it is alleged that the petitioner before me has deliberately suppressed the material facts about his agricultural property and has indulged in corrupt practice. Shri Joshi invites my attention to section 28F of the Act and submits that the act alleged on the part of the present petitioner is not made a corrupt practice under this statutory provision and, therefore, the election petition cannot be held to be maintainable, in any event. There is no question of mixing of allegations about non disclosure of the properties, alleged disqualification and urging corrupt practice. The election petition is devoid of any cause of action and was, therefore, liable to be dismissed. 13. Shri B.D.Joshi in support of his -9- contentions has relied upon the following decisions. i) Maniklal Madanlal Lahoti Vs. Tukaram Ganpat Tehore and others (1978 MLJ 316) ii) Dhartipakar Madan Lal Agarwal Vs.Shri Rajiv Gandhi (A.I.R.1987 S.C.1577) iii) Samar Singh Vs.Kedar Nath and othrs (AIR 1987 S.C.1926) iv) Udhav Singh Vs.Madhav Rao Scindia (AIR 1976 SC 744) v) N. C.Narayanswamy Vs.C.K.Jaffer Shariff and others (1994 Supp (3) SCC 170) vi) Ananga Uday Singh Deo Vs.Ranga Nath Mishra (JT 2001(8) SC 574) vii) M.Chinnasamy Vs.K.C.Palanisamy and others ((2004)6 SCC 341); and viii) Surinder Singh Vs.Hardia Singh and -10- others (AIR 1985 SC 89) 14. On the other hand, Shri Bipin Joshi appearing for respondent no.2 supports the impugned judgment. He submits that section 33 of the Act read completely and along with other provisions does not rule out an election petition alleging grounds or reasons as set out in the present case. He submits that the grounds on account of which it is alleged that the election is invalid, are covered by the expression "or for any other cause". The election is so widely worded that not just qualification of any person declared to be elected can be disputed but the validity of the election itself can be questioned. The validity can be questioned by alleging improper rejection of a nomination or of improper reception or refusal of vote or for any other cause or on the ground that the Returned candidate has committed a corrupt practice within the meaning of section 28A. Shri Bipin Joshi submits that these are distinct grounds on which the result can be held to be vitiated. It is not proper to restrict the meaning of the term "or for any other cause" to only those reasons and grounds mentioned in earlier part of sub-section (33)(1). If the -11- nomination form contains a misleading statement, then, the election can be held to be vitiated or in the event its validity questioned. In such circumstances, the election petition was clearly maintainable. Shri Bipin Joshi relies upon a Division Bench decision of this Court in the case of Dr.Sheikh Mohamed Arshad Faizulla Vs. Devidas Vithal Salsingikar and others (AIR 1976 Bombay 281). He also relies upon the decision of another learned single Judge of this Court in the case of Ashok Kashinath Mayekar and another Vs. The Municipal Corporation of Greater Bombay and others (1976 U.C.R.(Bom) 133). Shri Bipin Joshi also relies upon the judgment of the Hon’ble Supreme Court in the case of Union of India Vs. Association for Democratic Reforms and another (AIR 2002 Supreme Court 2112). 15. The petitioner’s alternate contention is that if the election petition is held to be maintainable under the category "for any other cause", then, it was incumbent upon the second respondent to plead and prove that the result of the elections is materially affected. He submits that there is no pleading in the entire election petition on this aspect. Respondent No.2 has not alleged that the result of the -12- election has been materially affected on account of the nomination form being erroneously accepted. The petitioenr’s primary contention is that a ground that a Nomination Form is erroneously accepted is not available to challenge the election. Assuming it is so, covered by the term "for any other cause", yet, further pleading that the result is materially affected not being there, the election petition in any event is liable to be dismissed. That is permissible in exercise of powers conferred by order VII Rule 11 of the Code of Civil Procedure. 16. Before ruling upon the rival contentions, at the out set, it would be proper to observe that this writ petition is decided on the basis that provisions of the Code of Civil Procedure pressed into service are applicable and could have been invoked. Although, the judgment of the Trial Court proceeds on the basis that these provisions cannot be invoked or in any event their applicability to the election petition is doubtful, yet, both sides have addressed me on the contents of the election petition and the provisions contained in the Bombay Municipal Corporation Act, 1888 regarding Election -13- Petitions. Therefore, it would not be necessary for me to go into any larger controversy and more particularly with regard to the applicability of the Code of Civil Procedure to trial of an election petition under the Bombay Municipal Corporation Act. I proceed on the basis that the application filed by the present petitioner was maintainable. 17. For considering the issue as to whether the election petition is liable to be dismissed summarily or not, it would be necessary to make a brief reference to the election petition. The relevant paras have been reproduced by me already. The emphasis of respondent no.2 is on the present petitioner not disclosing in the nomination form his movable and immovable properties and assets fully and completely. According to respondent no.2, the present petitioner has not made any disclosure with regard to the property which is agricultural land at village Songaon Taluka Khed, District Raigad. The property stands in the name of the present petitioner along with one Sitaram Krishna Kaarkar and Suresh Tukaram Kaarkar. After annexing the copy of 7/12 extract and inviting the attention of the Trial Court to the particulars with regard to purchase of this -14- agricultural land, it is urged that an incorrect statement so also deliberate suppression of this material fact in the nomination form vitiates the entire election. The copy of the nomination form of the present petitioner is referred to and annexed to the election petition. According to the election petitioner, respondent no.2/present writ petitioner had specifically mentioned that he does not have any agricultural property. Once the candidates are required to file their nomination forms in the prescribed manner and disclose therein all particulars and more particularly with regard to their movable and immovable properties and assets, then, not making a complete disclosure or not disclosing certain properties or suppressing them from the election authorities vitiates the election. In other words, it would be a case of his nomination form having been wrongly accepted. Thus, the election is vitiated and the provision in question is wide enough and the case falls in the category or ground "for any other cause" is the submission. 18. For appreciating this submission, a reference will have to be made to section 33 of the Bombay Municipal Corporation Act, 1988. The -15- same reads as under: "33. Election petitions to be heard and disposed of by Chief Judge of the Small Causes Court:-(1) If the qualification of any person declared to be elected for being 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 reception of refusal of a vote, or for any other cause (or if the validity of the election of a person is question on the ground that he has committed a corrupt practice within the meaning of section 28F), any person enrolled in the municipal election roll may, at any time, within (ten days) (from the date, on which the list prescribed under clause (k) of section 28 was available for sale or inspection apply to the Chief Judge of the Small Causes Court. (If the application is for a declaration that any particular candidate shall be deemed to have been elected, the applicant shall make -16- parties to his application all candidates who although not declared elected, have, according to the results declared (by the State Election Commissioner) under section 32, a greater number of votes than the said candidate, and proceed against them in the same manner as against the said candidate.) (1A) The applicant shall whenever so required by the Chief Judge, deposit in the Court a sum of Rs.500 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. (2) If the said Chief Judge, after making such inquiry as he deems necessary, finds that the election was a valid election and that the person whose election is objected to is not disqualified he shall confirm the declared results of the election. (If he finds that the person whose election -17- is objected to is disqualified for being a councillor he shall declare such person’s election null and void. If he finds that the election is not a valid election he shall set it aside. In either case, he shall direct that the candidate, if any, in whose favour the next highest number of valid votes is recorded after the said person, and against whose election no cause of objection is found, shall be deemed to have been elected." A bare perusal of section 33 makes it clear that the qualification of any person declared to be elected for being councillor can be disputed. Further, the validity of election can be questioned. The validity can be questioned for the reason of improper rejection of a nomination or improper reception or refusal of vote or for any other cause. Similarly the validity of election can be question on the ground that the returned candidate has committed corrupt practice within the meaning of section 28F. The election petition can be filed by any person enrolled in the municipal election roll. The election petition lies to the Chief Judge of -18- Small Causes Court. Further requirement is that if the application is for a declaration that any particular candidate shall be deemed to have been elected, all candidates who had contested have to be made parties to the application. Subsection (1A) of section 33 speaks of a deposit or security. Sub-section (2) empowers the Chief Judge to make an inquiry. The inquiry is to find out whether the election was valid election and that the person whose election is objected to is not disqualified. If the Chief Judge finds that the person whose election is objected to is disqualified for being councillor, he shall declare such person’s election null and void. If he finds that election is not valid election he shall set it aside. In either cases, he shall direct that the candidate, if any, in whose favour the next highest number of valid votes are recorded and against whose election no cause or objection is found, shall be deemed to have been elected. 19. A bare perusal of the said section would indicate that the election petition can question qualification of a declared or elected candidate/councillor. It can question the validity of any election. The validity can be -19- question by reason of improper rejection of a nomination or of improper reception or refusal of a vote or for any other cause. The words " or for any other cause" fell for consideration of a Division Bench of this Court. 20. The Division Bench in the case of Dr.Sheikh Mohamed Arshad Faizulla Vs. Devidas Vithal Salsingikar and others (AIR 1976 Bom.281) was considering a situation where an order was passed by the Chief Judge of the Court of Small Causes, Bombay in an election petition. That election petition was preferred by first respondent Devidas challenging the election of Dr.Sheikh Mohamed Arshad Faizulla the petitioner. The petitioner secured 4705 votes whereas Devidas secured 4353 votes. The Chief Judge set aside the election of the petitioner Shaikh Mohamed and declared Devidas elected. 21. The main challenge to the election was that prior to the election on March 9, 1973, several meetings were held and which were addressed by one G.M.Banatwala, President of the Muslim League and others. Dr.Shaikh was present at the meeting. The leaders of Muslim League with the connivance of the petitioner made speeches which -20- were highly communal and Anti National. They had the effect of promoting feelings of enmity or hatred. Appeals were made to voters to vote in the name of religion. 22. Allegations were denied but the matter was tried and upon trial the above decision came to be rendered. One of the grounds urged by Dr.Shaikh Mohamed in the writ petition was that the corrupt practice alleged against him does not fall within the ambit of section 33 and cannot be included in the residuary clause "or for any other cause". The learned single Judge of this Court accepted Devidas’s case. The argument on behalf of Dr.Sheikh was that this decision does not lay down the correct law and should be over ruled. 23. After adverting to this submission and referring to section 33, the Division Bench held thus: "During the course of his argument, Mr.Singhvi tried to maintain that the words constituting the residuary clause have to be interpreted on the rule of ejusdem generis. It may be noted that -21- the third ground mentioned in section 33(1) of the Act, viz. "or if the validity of the election of a person is questioned on the ground that he has committed a corrupt practice within the meaning of Section 28F" was inserted in Section 33(1) by way of an amendment in 1955. Before that amendment, right from the enactment of the Act, the words "or for any other cause" occurred at the end of the second ground on which the validity of the election could be questioned. It is difficult to hold that the expression "or for any other cause" has to be interpreted having regard to the rule of ejusdem generis. To take a simple case. It is alleged against the elected candidate that he had offered bribes to a number of voters in order that they should vote for him. Now, it is a well accepted principle that a ground like this would invalidate any election. Such a ground before the amendment of the year 1955 could fall only under the residuary clause "for any other cause". It could not be said that that ground related to ’anything -22- happening prior to or during the process of election for which the candidate was not responsible. Even then such a ground would have fallen under the residuary clause ’for any other cause". When the third ground about corrupt practice was added by the Amendment in the Year 1955, the purpose of the