skt/- 1 36.wp.2805.2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2805 OF 2010 Sou. Manisha Sanjay Waskar ) Age 26 yrs., Occ. Household, ) ..Petitioner R/o. plot No.27, Kedarnagar, ) Morewadi, Kolhapur ) Vs. 1. Anil @ Bajirao Balaso Dhavan (Panari), ) Age 37 yrs., Occ. Agri., ) R/o. Nandgaon, Tal. Karvir, ) Dist. Kolhapur. ) ) 2. The Returning Officer, ) Zilla Parishad, ) Panchayat Samiti Election, ) Tal. Karvir, Dist.Kolhapur ) Shri Kishor C. Pawar ) ) 3. Shri Rajendra Anandrao Dindorle, ) Age 29 yrs., Occ. Agri., ) ..Respondents R/o. Nandgaon, Tal. Karvir, ) Dist. Kolhapur. ) ) 4. Shri Kumar Mhadgonda Patil, ) Age 49 yrs. Occ. Agri., ) R/o. Daryache Vadgaon, ) Tal., Karvir, Dist. Kolhapur. ) ) 5. The Collector, ) Dist. Kolhapur. ) skt/- 2 36.wp.2805.2010.sxw Mr.N.V.Walawalkar with Mr.Amit P. Borkar, Advocate, for the Petitioner Mr.S.S.Patwardhan with Mr.Chetan Patil, Advocate, for Respondent No.1 Mr.R.M.Patne, Assistant Government Pleader, for Respondent no.5. CORAM : R. C. CHAVAN, J. JUDGMENT RESERVED ON : 7TH MAY, 2010 JUDGMENT PRONOUNCED ON : 10TH JUNE, 2010 JUDGMENT Rule. By consent, rule made returnable forthwith. 1. This petition, by a Member of Zilla Parishad, Kolhapur, is directed against the Judgment of the learned District Judge, Kolhapur, setting aside her election and declaring respondent no.1­ Anil Bajirao Dhavan as elected in her place. 2. Facts which are material for to deciding this petition are as under : The petitioner had filed her nomination for contesting the election to Kolhapur Zilla Parishad from Panchgaon, Block No. 40. Respondent No.1­Anil Dhavan was also a candidate at that skt/- 3 36.wp.2805.2010.sxw election. The petitioner secured 10751 votes whereas respondent no. 1 secured 7554 votes. Other contestants, who are respondent nos. 3 & 4, had secured 546, 245 votes respectively. The petitioner was, therefore, declared elected as a Member of Zilla Parishad Kolhapur from Panchgaon constituency. 3. Respondent No.1 questioned the election by filing a petition under Section 27 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (hereinafter referred to as ‘the Act’). According to respondent no.1, the petitioner was born on 21st December 1986 and therefore, would have completed the age of 21 years on 21st December 2007 and thus, was not qualified to contest the election on 24th February 2007, the relevant date. 4. The petitioner contested the said petition and claimed that she was, in fact, born on 21 December 1983 and not on 21st December 1986 and thus had completed 21 years of age on 21st December 2004 and therefore, was eligible to contest the election. skt/- 4 36.wp.2805.2010.sxw 5. Upon considering the evidence tendered before him, the learned District Judge held that the petitioner was not qualified to contest the election to Zilla Parishad Kolhapur as she had not completed 21 years of age on the relevant date. He, therefore, set aside the petitioner’s election and proceeded to declare respondent no.1, who had secured 2nd highest number of votes, to have been elected as Member of the Zilla Parishad. Aggrieved thereby, the petitioner has filed this petition. 6. I have heard the learned counsel for the petitioner, the learned counsel for contesting respondent no.1, and the learned AGP for respondent no.5. According to the learned counsel for the petitioner, the learned District Judge could not at all have declared respondent no.1 as elected in place of the petitioner, even if it was to be held that he was justified in setting aside petitioner’s election. He submitted that there is no provision in the Act which would entitle the learned District Judge to grant such a declaration. According to the learned counsel of respondent no.1, Clause (b) of Section 27(5) of the Act does so provide. skt/- 5 36.wp.2805.2010.sxw 7. Before considering the arguments advanced, it may be useful to reproduce for ready reference the provisions of Section 27(5) of the Act as under : “(5)(a) If on holding such enquiry the Judge finds that a candidate has, for the purpose of election, committed a corrupt practice within the meaning of sub­section (6) (or submitted a false claim or a false Caste Certificate), he shall declare the candidate disqualified for the purpose of that election and of such fresh election as may be held under sub­section (2) and shall set aside the election of such candidate if he has been elected. (b) If in any case to which clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the Judge, after a scrutiny and computation of the votes recorded in favour of each candidate, is of opinion that in fact any candidate in whose favour the declaration is sought has received the highest number of the valid votes, the Judge shall after declaring the election of the returned candidate to be void declare the candidate in whose favour the declaration is sought, to have been duly elected : Provided that, for the purpose of such computation no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person, known or unknown, in giving or obtaining it . Provided further that, after such computation if any equality of votes is found to exist between any candidates and the addition of one vote will entitle any candidate to be declared elected, one additional vote skt/- 6 36.wp.2805.2010.sxw shall be added to the total number of valid votes found to have been received in favour of such candidates selected by lot drawn in the presence of the Judge in such manner as he may determine. ” (Emphasis Supplied) 8. In “Dnyaneshwar Rambhau Barabudhe V/s.Returning Officer/Dy. Collector (EGS), Amravati & Ors., reported in 1998(4) Bom.C.R.578” on which the learned counsel for the petitioner placed reliance, this Court held that in case votes of successful candidate are thrown out, it could never be held that all these votes could have gone to the next highest candidate only, and therefore, the Court ordered a fresh election. The Court was considering provisions of Section 16 of the Bombay Provincial Municipal Corporations Act, 1949 which may be usefully reproduced as 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 reception 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 skt/- 7 36.wp.2805.2010.sxw 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 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. Explanation.­ 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 skt/- 8 36.wp.2805.2010.sxw 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 attempts 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 skt/- 9 36.wp.2805.2010.sxw 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.” It may be seen that this Section does not at all provide for skt/- 10 36.wp.2805.2010.sxw declaring any other candidate as elected. Therefore, this Judgment may not be of any help. 9. The learned counsel appearing for the parties drew my attention to a judgment of a learned Single Judge delivered on 5 th April 2004 in “Writ Petition No.8546 of 2003 in case of Sarika Srimant Kamble V/s. Sou.Mangal Bajirao Satpute & Ors.” (referred to in paragraph 14 of the Judgment impugned in this petition) where too, this Court was considering a judgment of the District Judge setting aside the election of a returned candidate to a Zilla Parishad on the ground that she had not completed 21 years age, and declaring a candidate who had secured 2nd highest number of votes as elected. After carefully considering the provisions of Section 27 of the Act, as also provisions of Section 123 of the Representation of People Act and analogous provisions contained in Section 33 of the Bombay Municipal Corporation Act, this Court held that such a declaration could not have been issued by the District Judge and therefore, remitted the matter back to the District Judge for examining as to whether a declaration under clause (b) of Sub­ skt/- 11 36.wp.2805.2010.sxw section 5 of Section 27 of the Act was warranted. 10. Relying on this Judgment, the learned counsel for respondent no.1 submitted that in case an election is set aside on the ground of corrupt practice, to which clause (a) of Sub­section 5 would apply, election of the returned candidate has to be set aside and fresh elections have to be ordered. But in case where this clause (a) does not apply, i. e. election is not set aside on the ground of corrupt practice, the Judge, has to declare the candidate who had secured 2nd highest number of votes and in whose favour the declaration was sought to have been duly elected. According to the learned counsel, following the precedent in Sarika's case, a candidate who had secured the 2nd highest number of votes could be declared as elected, albeit upon a remand. 11. I am afraid that such is not the ratio of the said decision. 12. First, it cannot be forgotten that the Legislature was very much aware of a mechanism whereby it could have provided that in skt/- 12 36.wp.2805.2010.sxw such a situation, a candidate who secured 2nd highest number of votes, could be declared as elected, as the legislature had provided in Sub­section 2 of Section 33 of the Bombay Municipal Corporation Act, (referred to in the Judgment in Sarika's case) which reads as under : “33[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 is objected to is disqualified for being a councilor be 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 or objection is found, shall be deemed to have been elected.” (Emphasis Supplied) 13. If the Legislature did not make a similar provisions in skt/- 13 36.wp.2805.2010.sxw Section 27 of the Act, the Legislative intention is very clear and therefore, it would be impermissible to stretch clause (b) of Sub­ Section 5 of Section 27 of the Act to cover even such a situation. Clause (b) of Sub­section 5 would come into play only if there is a dispute about computation of votes either because the counting was not properly done or votes were wrongly invalidated or invalid votes were wrongly counted. Though the Legislature has chosen the expression “in any case where clause (a) does not apply”, it does not follow that the Legislature intended that candidate who had secured 2nd highest number of votes should be declared as elected, in all cases other than those covered by Clause (a), because the clause provides for declaring a candidate who had secured the highest number of votes as elected and not the person who had secured 2nd highest number of votes. The clause does not provide for exclusion of votes polled by a candidate who was found to be not qualified. The Clause has to be read in its entirety. A declaration can be made in favour of a candidate only if he has secured the highest number of valid votes upon scrutiny and computation of votes. Even if for the sake of argument Clause (b) of Sub­section 5 is taken to skt/- 14 36.wp.2805.2010.sxw contemplate a situation where a returned candidate was found to be not qualified for contesting the election, the consequence of such a finding, would not be that the candidate receiving 2nd highest number of votes as elected. This would amount to reading what is not there in the section. Remand of the matter by the learned Single Judge to District Court would only indicate that all aspects of the question were left open. 14. It is not that the votes secured by the petitioner, would have to be totally ignored from consideration. If the petitioner is held as not qualified for contesting the election, votes polled by her need not necessarily be taken to have gone to respondent no.1. Therefore, it is not possible to conclude that clause (b) of Sub­ section 5 of Section 27 of the Act would apply even in a case where an election of a returned candidate is set aside on the ground that such candidate was not qualified to contest. In such a case, there would be no occasion to scrutinize or compute the votes recorded in favour of candidates or to declare the candidate who had secured 2nd highest number of votes as elected, because, even upon such a fresh skt/- 15 36.wp.2805.2010.sxw computation and scrutiny of votes, the candidate who had been unseated, would again be found to have secured the highest number of votes. In fact, Clause (b), if read as a whole, would show that it deals with only the dispute about counting of votes, notwithstanding the choice of wide expression used at the beginning of the Clause. Viewed thus, there would be no question of remitting the matter back to the learned District Judge for examining if such a declaration could be made, as was done in Sarika's case, as it would be an empty formality. 15. Even Section 101 of the Representation of the People Act, 1950 which reads as under, does not provide for declaring a candidate who has secured 2nd highest number of votes as elected. “ 101. Grounds for which a candidate other than the returned candidate may be declared to have been elected.­ If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and (the High Court) is of opinion ­ (a) that in fact the petitioner or such other candidate received a majority of the valid votes; or skt/- 16 36.wp.2805.2010.sxw (b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, (the High Court) shall, after declaring the election of the returned candidate to be avoid declare the petitioner or such other candidate, as the case may be, to have been duly elected.” 16. For granting such a declaration, there has to be an express provision as is to be found in section 33(2) of the Mumbai Municipal Corporation Act, 1888. What is not there in section 27(5) of the Act cannot be added by judicial interpretation, since words of the Section are very clear and there is no ambiguity. Therefore, as far as the declaration given in favour of respondent no.1 is concerned, obviously the petition has to succeed. 17. This takes me to the question whether the petitioner could be held to be disqualified because she was born on 21st December 1986 and not on 21st December 1983 as claimed by her. The evaluation of the evidence in this behalf by the learned District Judge cannot be faulted. There is a considerable merit in the skt/- 17 36.wp.2805.2010.sxw contention of the learned counsel for the respondent that the evidence tendered would point to the impossibility of petitioner having been born on 21st December 1983, particularly since the petitioner’s own husband had filed before Tahsildar a certificate showing that the petitioner was born on 21st December 1986 for obtaining her caste certificate. Petitioner's elder brother Uday was shown to have been born on 14.04.1983 as per birth register extract at Exhibit 113 or on 19.04.1984 as per entry in School record proved by witness Shamala Pawar, in charge Head Mistress of the School. Ordinarily Petitioner could not have been born within 8 months of birth of her elder brother on 14.04.1983 or 4 months before his birth on 19.04.1984. 18. In this case, the petitioner had tendered evidence of Dr.Sudhir Deshmukh, Pandurang Ganpati Shinde, Pandit Mazgaonkar nd Satish Vishnu Waskar, but not that of the petitioner’s parents, particularly her mother, who would have been the best persons to state that as to when the petitioner was born. The learned counsel for the petitioner submitted that no such adverse skt/- 18 36.wp.2805.2010.sxw inference could be drawn, and for that purpose relied on a judgment of the Supreme Court in “Birad Mal Singhvi V/s. Anand Purohit” reported in “ A.I.R. 1988, SC 1796” where the Court held that adverse inference could not be drawn as regards the candidate’s age for the failure of the candidate to produce his parents to corroborate the claim about the date of birth. However, on facts in that case it was held that the two candidates whose nomination was rejected by the Returning Officer, as they had not attained the qualifying age of 25 years, had been rightly excluded. The Court had also considered the evidentiary value of entries in a school register and had observed that the deposition of Principal of a Government School did not show the basis on which the entry of the date of birth was made in the school register. The learned counsel submitted that even in the instant case non­examination of person at whose instance the entry was taken by the school authority would reduce the evidentiary value of the said entries in a school register. The learned District Judge had held against the Petitioner not because parents were not examined, but on the basis of other evidence on record. Even after excluding entries in School Register, impossibility skt/- 19 36.wp.2805.2010.sxw of Petitioner being born on 21.12.1983 remained. Since this finding is neither improbable nor perverse it cannot be lightly disturbed in exercise of Writ Jurisdiction. 19. The learned counsel for the petitioner, however, submitted that election is a process which has various stages and as the process crosses each stage, the proceedings prior to that stage get closed or finalized. Therefore, if Petitioner was allowed to contest elections on the basis of entry of her name in the electoral roll, her election could not now be questioned. There is a considerable merit in the contention of the learned counsel for the petitioner that election process is one which proceeds in stages and it would be improper to allow the process to be reopened at the last stage on a ground which would have been available to a party when the voters list itself was finalized. However, since the question of eligibility of the petitioner to be elected on the ground that she had not attained 21 years of age at the relevant time, goes to the root of her entitlement to contest the election to Zilla Parishad, failure of raise objection at the stage of finalization of voters list may not be skt/- 20 36.wp.2805.2010.sxw fatal. 20. The learned counsel