*1* wp.5295.09.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5295 OF 2009 Eknath Bayaji Gadkari. ..Petitioner -Versus- Bombay Municipal Corporation and others. ..Respondents .......... Mr.S.S.Redekar, for the Petitioner. Mr.Balkrishna D. Joshi, for the Respondent No.3. Mr.R.A.Malandkar, for the Respondent No.1/BMC .......... CORAM : S.C.DHARMADHIKARI, J. Reserved on : 01st July, 2011. Pronounced on : 02th August, 2011. JUDGMENT: 1 Rule. Respondent Nos.1 and 3 waive service. The others are not contesting parties and are hence not required to be served. By consent, Rule made returnable forthwith. 2 By this Writ Petition under Article 227 of the Constitution of India, the Petitioner challenges an order passed by the Small Causes Court at Mumbai dated 06.03.2009. By this order rendered on preliminary issues as per Exhibit 17(A), it has been held that paragraph Nos.3, 3(a), 3(b), 3(c), 3(d), 3(e), 3(f), 3(g), 3(h), 3(i), 3(j), 3(k), 3(l), 3(m), 3(p), 3(q) and 3(r) of the election petition do not disclose any cause of action, therefore, the said paragraphs are liable to be struck off. However, it is held that the election petition is not liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure. *2* wp.5295.09.sxw 3 Aggrieved by this order, the original Election Petitioner has filed the present Writ Petition. 4 Election Petition No.21/2007 was filed by the Petitioner in the Court of Small Causes at Mumbai under Section 33(1) of the Mumbai Municipal Corporation Act, 1888. 5 It was the case of the Petitioner that the elections to the Bombay Municipal Corporation were held on 01.02.2007. The results were declared on 02.02.2007. The Petitioner contested the election as a candidate of Nationalist Congress Party (in short “NCP”) from Ward No. 194 (Parel BDD Chawls) and his symbol was “watch”. The rival candidate was Sunil Govind Shinde who is Respondent No.3 to this petition. He contested as a candidate of Shiv Sena party. The Petitioner secured 3610 votes whereas the Respondent No.3 secured 11475 votes. It is the case of the Petitioner that he secured second highest number of votes. The Petitioner has impleaded other candidates as parties to the Election Petition. It is his case that the total number of voters was 40,388 whereas 20,624 votes were polled. It is the case of the Petitioner that counting was held at N.M.Joshi Marg Municipal Secondary High School, Mumbai-13 on 02.02.2007. It is his case that the Respondent No.3 and his Chief Election Agent Mr.Shankar Belnekar and other workers and leaders of Shiv Sena party with his consent indulged into various corrupt practices. It was stated that there was a joint public meeting of BJP and Shiv Sena parties on 28.01.2007 at which meeting, the Respondent No.3 was present. One of the speakers in the meeting was Mr.Bal Thakare. Mr.Thakare made an appeal to vote in the name of religion and this appeal was reported in news papers. It is alleged that this has materially affected the results *3* wp.5295.09.sxw declared on 02.02.2007. It is stated that at this meeting, as far as BJP is concerned, Mr.Narendra Modi, Chief Minister of Gujarat was present. Both of them gave speeches to vote in favour of Shiv Sena & BJP candidates i.e. Respondent No.3 which amounted an appeal for vote in the name of religion. It is alleged that the speeches delivered, aroused the feelings of Hindu and Marathi voters in Mumbai and caused them to vote for the Respondent No.3 and refrained them from voting for the Petitioner. In these speeches, various statements were made to attract Hindu voters. The same amounts to an appeal to vote for Shiv Sena party. It is stated that in the ward in question nearly 75% of population is of Hindus. The speeches delivered on 28.01.2007 at Shivaji Park were reported in news papers i.e. Loksatta and Navakal. It was represented that BJP & Shiv Sena parties were protectors of Hindu religion and Marathi people and no other person can protect Hindu religion. This is alleged in paragraph No.3(b) of the Election Petition. 6 In paragraph Nos.3(c) and 3(d) of the Election Petition, it is alleged that the CID has tape recorded these speeches and the record is available with them. The Petitioner wishes to examine the press-reporters who attended the said meeting and made a report about the speeches. It is alleged that the expenditure permitted by law for elections was Rs. 1,35,000/-, but the Respondent No.3 spent over Rs.15 lacs with a view to influence the voters. The Respondent No.3 published a booklet giving an account of the works supposed to have been done by him as Shakha Pramukh. About 25000 booklets were published which contained glossy and multi-coloured papers and cost of each booklet was Rs.3/- minimum. 7 It is then alleged in paragraph 3(e) that the Petitioner is from *4* wp.5295.09.sxw Kolhapur and there were more than 15000 voters from Kolhapur region, residing in the constituency. To mislead and to attract the said voters, the Respondent No.3 published the notices in the name of unknown person and the same were pasted at the entrances and conspicuous part of the buildings of Ward No.194, particularly at BDD Chawls and the buildings at N.M. Joshi Marg, so that everybody can read it. This act amounts to malpractice and inducement on the part of the Respondent No.3. 8 In paragraphs 3(f), 3(g) and 3(h), this is what is stated:- “(f) It is learnt that the Respondent No.3 has distributed money before starting of poll. Thus the Respondent No.3 indulged in corrupt practice. In fact the Respondent No.3 procures and/or hired vehicles for the convenience for his committed voters to the polling stations. (g) The Petitioner submits that prior to the voting machines being installed in the polling booth, the Respondent No.3 through himself, his agents or his hirelings managed & manipulated to damage & change the internal circuit of the said voting machines to gain the votes with the help of the B.M.C. workers and police. The Petitioner submits that the Respondent No.3 with his associate damaged the internal circuit of the voting machines, whereby the connection of Sr.No.3 button was joined to Sr.No.11 and Sr.No.11 button was joined to Sr.No.3. So that the vote casted in favour of the Sr.No.3 candidate (Petitioner) goes to Sr.No.11 candidate (Respondent No.3). And that can be verified by testing the internal arrangement of the voting machines where the connection of Sr.No.3 and Sr.No.11 are interchanged. The Petitioner states that the custody of the voting machines are with the B.M.C. prior to and after the election process and not with any independent authority. Thus it is necessary to pass an order and direction at this stage that the custody of the voting machines be taken and the machines be sent for examinations of a expert which would clearly indicate and prove the contentions of the Petitioner. Therefore, it is necessary that the voting machines are taken in appropriate custody of the authority and the investigation *5* wp.5295.09.sxw of the voting machines to be done by appropriate authority. Further the sample votes to be casted in same voting machines and result to be seen in front of this Hon’ble Court. The Petitioner submits that this can be verified by this Hon’ble Court as from the polling booths highest votes were to be polled in favour of the Petitioner, the Respondent No.3 got the higher votes, when there was no possibility at all that the Respondent No.3 would get higher votes from these polling booths. (h) The Petitioner states that there was bogus voting done by the Respondent No.3 on booth No.34, 35 and 36 in Ward No.194. The Petitioner states that the agents and workers of the Respondent No.3 with his consent was bringing the voters by private vehicles such as TATA Sumo, Qualis at around 3:30 p.m. to 4:15 p.m. and said fact was brought to the notice of Election Officer of the said booths. Said R.P.I. candidate also mentioned the number of vehicles which were bringing voters. The Petitioner states that when the Election Officer send photographer to said booth the party workers & brother of Respondent No.3 run away. At that time the party workers of Shiv Sena were wearing Orange Dress & Arrow-Bow signs and they were telling to the voters to give vote to Respondent No.3, which violates model code of conduct. The Petitioner submits that complaints was lodged by the R.P.I. candidate. Hereto annexed and marked Exhibit E is the copy of letter dt.01.02.2007 addressed by R.P.I. candidate.” 9 In paragraph 3(i), the allegations are about preparation of bogus ration cards and election identity cards of the voters to cast vote in favour of the Respondent No.3. It is then alleged in paragraph 3(j) that on the date of declaration of result on 02.02.2007 when the Petitioner found that the Electronic Voting Machines (EVMs) are tampered and the electronic chips/circuits of the said EVMs are changed by the Respondent No.3, so that he can win the election easily, the Petitioner immediately lodged a complaint before the Election Officer on 02.02.2007 and also *6* wp.5295.09.sxw before other authorities. 10 It is then alleged that in some of the Form VM-3 which was duly signed by the Polling Election Officer of the said booth, the number of the EVM was not mentioned. In some of the forms, four EVMs are mentioned, when there are only 381 voters. Thus, there was every possibility that EVMs were tampered by the Respondent No.3. It is, therefore, alleged that on account of the above corrupt practices, illegality and irregularity in the voting machines, the results of the election have been materially affected. 11 It is then alleged in paragraph 3(p) that no time was given to the Polling Agents to verify the EVMs prior to its installment and after its installation, immediately the polling started at 7:30 a.m. and EVMs were not installed one hour prior to voting as per rules. Therefore, EVMs are not tested nor verified in front of the Polling Agents. This is one more allegation insofar as possibility of tampering of EVMs by the Respondent No.3 through his agents and hirelings. Similarly, in paragraph 3(q), the allegation is that after declaring the results, the EVMs are not sealed in front of the candidates or representatives of candidates by the Election Officer. Therefore, there is possibility that the EVMs can be installed in its origin position. Upon such allegations, that Election Petition has been filed. 12 On the Election Petition being served, the Respondent No.3 filed the Written Statement denying each of allegations. The Written Statement was filed in the month of March, 2007. *7* wp.5295.09.sxw 13 Thereafter, an Application No.18/2008 was made by the Respondent No.3 for framing the preliminary issues. In the said application which was filed in the month of January, 2008, it was prayed that paragraph Nos.3, 3(a), 3(b), 3(c), 3(d), 3(e), 3(f), 3(g), 3(h), 3(i), 3(j), 3(k), 3(l), 3(m), 3(p), 3(q) and 3(r) be struck off as not disclosing any cause of action under Order VI Rule 16 of the Code of Civil Procedure and since after striking out these pleadings, no triable issues remain to be considered and decided, the Election Petition itself be rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908. It is on this application that the impugned order has been made, by which, the learned Judge of the Court of Small Causes, Mumbai has proceeded to allow the said application and strike off the above paragraphs as same do not disclose the cause of action. It is this order of the learned Judge which is challenged in this petition. 14 As stated above, in pursuance of this application, the preliminary issues were framed and that is how the parties were heard. 15 Mr.Redekar, learned counsel appearing for the Petitioner, submits that a perusal of the impugned order would show that no reasons are assigned by the learned Judge. The learned Judge has merely recorded the contentions of both sides, but has not disclosed as to why he has held in the affirmative and struck off the subject paragraphs. No where in the impugned order there is any discussion either on applicable principles or with regard to any specific allegations in the election petition pursuant to which the learned Judge concludes that the subject paragraphs do not disclose any cause of action. The entire exercise of the learned Judge is, therefore, erroneous and impermissible in law. He *8* wp.5295.09.sxw should have been aware that the election petition is a serious proceeding and unless the Petitioner has an opportunity to substantiate his allegations which are of corrupt practice, the petition cannot be thrown out merely at the desire of the returned candidate. Purity of the election process is at stake. Therefore, the impugned order be quashed and set aside. 16 On the other hand, Mr.Joshi, learned counsel appearing for the returned candidate (Respondent No.3), supported the impugned order and submitted that the learned Judge has made reference to the settled principles and has correctly applied them to the facts of the instant case. The election petition is devoid of any cause of action because absolutely nothing has been stated which could constitute an allegation of corrupt practice within the meaning of Section 28F of the Mumbai Municipal Corporation Act, 1888. Mr.Joshi submits that the learned Judge has referred to all paragraphs which are the subject matter of the application and therefore, it cannot be said that elaborate and satisfactory reasons have not been assigned. Inviting my attention to paragraph No.3 of the impugned order, Mr.Joshi submits that the learned Judge is aware of the fact that the allegations are vague and not precise at all. The election petition does not contain the material facts so as to give rise to any triable issue and therefore, the said paragraphs have been rightly struck off. In fact after striking out these paragraphs, nothing remains in the election petition and it deserves to be dismissed as a whole. Mr.Joshi submits that if the settled principles are applied and this Court peruses the instant election petition independently of the reasonings in the impugned order, no other conclusion is possible. For all these, Mr.Joshi prays for dismissal of the Writ Petition. *9* wp.5295.09.sxw 17 For properly appreciating the rival contentions, a reference will have to be made to Section 33 of the Mumbai Municipal Corporation Act, 1888. That provides for hearing of the election petition by the Chief Judge of the Court of Small Causes. The election can be questioned on the grounds of improper rejection of a nomination or improper reception or refusal of a vote or for any other cause. The validity of the election of a person can also be questioned on the ground that he has committed corrupt practice within the meaning of Section 28F of the Mumbai Municipal Corporation Act, 1888. Section 28F defines a corrupt practice and Section 28G states about corrupt practices, criminal offences and procedure. Sections 28F and 28G read thus:- “28F. What is a corrupt practice. A person shall be deemed to have committed a corrupt practice within the meaning of section 33-- (i) who, with a view to inducing any voter to give or to refrain from giving a vote in favour of any candidate, offers or gives any money or valuable consideration, or holds out any promise of individual profit or holds out any threat of injury, to any person; or (ii) who gives, procures or abets the giving of a vote in the name of a voter who is not the person giving such vote; or (iii) who hires or procures, whether on payment or otherwise, any vehicle or vessel for the conveyance of any voter to, or from, any polling station: Provided that-- (a) the hiring of a vehicle or vessel by a candidate for himself or his family or an election agent shall not be deemed to be a corrupt practice under this section; (b) the hiring of a vehicle by a voter or by several voters at their joint cost for the purpose of conveying him or them, to, or from any such polling station shall not be deemed to be corrupt practice under this section, if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power; (c) the use of any public transport vehicle or vessel or any tram-car or railway carriage by any voter at his own cost for the purpose of going to, or coming from, any such *10* wp.5295.09.sxw polling station shall not be deemed to be a corrupt practice under this section. And a corrupt practice shall be deemed to have been committed by a candidate if it has been committed with his knowledge and consent with reference to the elections. Explanation:- The expression “a promise of individual profit”-- (i) does not include a promise to vote for or against any particular measure which may come before the corporation for consideration, but (ii) subject thereto, includes a promise for the benefit of the person himself or any person in whom he is interested. 28G. Corrupt practices, criminal offences and procedure. (1) (a) Whoever in any election directly or indirectly, by himself or by any other person on his behalf, shall, with a view to inducing any voter to give or to refrain from giving a vote in favour of any candidate, offer or give any money or valuable consideration or hold out any promise of individual profit or hold out any threat of injury to any person, or (b) Whoever shall give, procure or abet the giving of a vote in the name of a voter, who is not the person giving such vote, or (c) Whoever hires or procures any vehicle or vessel for the conveyance of any voter, to, or from, a polling station in the circumstances described in clause (iii) of section 28F, shall be liable to a fine not exceeding two hundred rupees for every such offence. (2) Whoever, being qualified to vote at any election claiming to be so qualified accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person any money or valuable consideration or any individual profit as a motive or reward for giving or forbearing to give his vote in any such election shall be liable to a fine not exceeding one hundred rupees for every such offence. Explanation-- In sub-sections (1), (2) ‘individual profit’ includes a benefit accruing to the person himself or to any one in whom he is interested. It does not include a promise to vote for or against any measure which may come before the corporation for consideration. *11* wp.5295.09.sxw [(2A)] Whoever in connection with any election, directly or indirectly, by himself or by any other person on his behalf, promotes or attempts to promote feelings of enmity or hatred, between different classes of the citizens of India on grounds of religion, race, caste, community or language, shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.] (3) Every person convicted under sub-section (1) or sub- section (2) [or sub-section (2A)] shall, for such period not exceeding seven years from the date of the conviction as the Court may direct, be disqualified from voting at any election. (4) No court shall take cognizance of any offence under this section except on the complaint of the Judge who has held an enquiry under section 33 or before whom such inquiry is pending. (5) No prosecution for an offence under this section shall be instituted except within six months next after the date of the declaration of, the result of the election. (6) An appeal shall lie to the High Court against any sentence or order passed by a Magistrate under sub-section (1), sub-section (2), [sub-section (2A)] or sub-section (3).” 18 If in the light of these statutory provisions, the election petition is perused, it is clear that what it projects in paragraph 3(a) is a corrupt practice in the form of an appeal to vote on the ground of religion. As far as this allegation is concerned, the election petition may be maintainable. In the election petition, such allegation can be made to question the validity of the election and it could fall within the term “or for any other cause” under Section 33 of the Mumbai Municipal Corporation Act, 1888, but the allegation must be pleaded on par with sub-clause (3) of Section 123 of the Representation of the People Act, 1951 or section 28G(2A) of the Mumbai Municipal Corporation Act, 1888. However, if this is stated to be a case on par with sub-section (3) of section 123 of the Representation of the People Act, 1951, then, the *12* wp.5295.09.sxw pleadings ought to be precise and clear and the appeal should be to vote or refrain from voting in the name of his religion (candidate’s religion). The test that is applied in relation to corrupt practice is that the inquiry is quasi-criminal in nature. In the instant case, the allegations made are also referable to section 28G(2A) of the Mumbai Municipal Corporation Act, 1888. Therefore, the tests are stringent and rigorous in nature. Hence, the degree of proof is as above. Hence, specific allegations have to be made in the petition. Now paragraph 3(a) no where refers to religion of the returned candidate nor does it contain any pleading that these speeches constitute an appeal to vote for the returned candidate or refrain from voting for the Petitioner on account of his religion. If the pleading is perused, it is clear that the speech is an appeal to all Hindus/Marathi voters in Mumbai to vote for Shiv Sena party. Now, the general allegation that if the speeches were made to attract Hindu/ Marathi voters or to arouse the feelings of Hindu/ Marathi voters, then, that cannot be a corrupt practice within the meaning of Section 123(3) of the Representation of the People Act, 1951. It would not be proper to permit for the purpose of the Mumbai Municipal Corporation Act, 1888, a pleading of corrupt practice traceable to Section 123(3) of the Representation of the People Act, 1951, which does not meet the requirement of that statute. In other words, the pleading of corrupt practice on the ground of appealing to the voters to vote or refrain from voting in the name of candidate’s religion, should in consonance with the said provision. 19 Recently, in the case of Singh Shamsher Rambahal v/s Election Commissioner and others, reported in 2011(1) Mh.L.J. 620, I had an occasion to consider as to what would constitute a pleading of corrupt *13* wp.5295.09.sxw practice under Section 123(3) of the Representation of the People Act, 1951 and after referring to the entire case law and principles laid down therein, this is what is held:- “24] In the above decision this is what the Hon’ble Supreme Court observed in the above context:- “7. The nature of the right to elect, the right to be elected and the right to dispute an election and the scheme of the constitutional and statutory provisions in relation to these rights have been explained by the Court in N.P.Ponnuswami Vs. Returning Officer, Namakkal Constituency, 1952 SCR 218 : (A.I.R. 1952 S.C. 64) and Jagan Nath Vs. Jaswant Singh, A.I.R. 1954 S.C. 210. We proceed to state what we have gleaned from what has been said, so much as necessary for this case.” “8. A right to elect, fundamental though it is to democracy, is anomalously enough, neither a fundamental right nor a common law right. It is pure and simple a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore,