{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7321 OF 2008 Venkat Rangrao Dhumal R/o Village Shedol, Tq-Nilanga Dist-Latur PETITIONER VERSUS 1. The State Election Commissioner Maharashtra State, Mumbai 2. The District Election Officer, Collector, Latur, Returning Officer of Election of Zilla Parishad / Panchayat Samities of Shedol Block, Tq-Nilanga Dist-Latur 3. Assistant Election Officer (Deputy Collector) Nilanga Assistant Returning Officer Zilla Parishad / Panchayat Samities of Shedol Block, Tq-Nilanga Dist-Latur 4. Assistant Election Officer & Tahsildar, Nilanga 5. Dhumal Pandit Vitthalrao R/o New Mumbai (Washi) Terna Medical College, Navi Mumbai At Hadga Road, Nilanga, Dist-Latur 6. Satish Trimbak Patil R/o Wadgaon, Tq-Nilanga, Dist-Latur {2} 7. Mohanrao Madhavrao Patil R/o village Jajnoor Tq-Nilanga Dist-Latur 8. Swarup Gopalrao Patil R/o Lambota Tq-Nilanga Dist-Latur 9. Chief Officer, Zilla Parishad, Latur 10. Block Development Officer Panchayat Samiti, Nilanga Dist-Latur RESPONDENTS ....... Mr.V.D.Gunale, Advocate for petitioner Mr.V.B.Ghatge, AGP for State Mr.V.H.Hon, Advocate for respondent No.5 Mr.A.V.Patil, Advocate for respondent No.6 Mr.S.T.Shelke, Advocate for respondent No.1 Mr.S.S.Manale, advocate for respondents No.9 and 10. ....... WITH WRIT PETITION NO.199 OF 2009 Pandit Vitthalrao Dhumal R/o Shedul, Tq-Nilanga Dist-Latur PETITIONER VERSUS 1. The State Election Commissioner Maharashtra State, Mumbai 2. The District Election Officer, Collector, Latur, Returning Officer of Election of {3} Zilla Parishad / Panchayat Samities of Shedol Block, Tq-Nilanga Dist-Latur 3. Assistant Election Officer (Deputy Collector) Nilanga Assistant Returning Officer Zilla Parishad / Panchayat Samities of Shedol Block, Tq-Nilanga Dist-Latur 4. Assistant Election Officer & Tahsildar, Nilanga 5. Venkatrao Rangrao Dhumal R/o Shedul, Tq-Nilanga Dist-Latur 6. Mohanrao Madhavrao Patil R/o village Jajnoor Tq-Nilanga Dist-Latur 7. Swarup Gopalrao Patil R/o Lambota Tq-Nilanga Dist-Latur 8. Chief Officer, Zilla Parishad, Latur 9. Block Development Officer Panchayat Samiti, Nilanga Dist-Latur 10. Satish Trimbak Patil R/o Wadgaon, Tq-Nilanga Dist-Latur ...... Mr.V.D.Hon, Advocate for petitioner Mr.S.T.Shelke, Advocate for respondent No.1 {4} Mr.V.B.Ghatge, AGP for respondent State Mr.S.S.Manale, advocate for respondents No.8 and 9 Mr.V.D.Gunale, Advocate for respondent No.10 [CORAM : A.V.POTDAR, J.] RESERVED ON : 05/08/2009 PRONOUNCED ON: 06/08/2009 JUDGMENT: 1. Considering the identical question of facts and law involved in both these petitions, these petitions can be disposed of by this common judgment. 2. Rule. Rule returnable forthwith. With the consent of learned counsel for the parties, heard finally at the stage of admission. 3. Heard learned counsel for the parties. 4. Facts which gave rise to file the present petitions can be summarized as follows- Petitioner in Writ petition No.7321/2008, Venkat, respondent No.5, Pandit and respondents No.6 to 8 have contested elections of Zilla Parishad, Latur from Block No.52. In the said elections, respondent No.5 Pandit, who is from Congress Party is declared as elected whereas petitioner Venkat and respondents No.6 to 8 lost {5} the said election. Result of the said election was declared on 12.03.2007. Petitioner Venkat has challenged the election of respondent No.5 Pandit by filing election petition No.05/2007 u/s 27 of the Maharashtra Zilla Parishdas and Panchayat Samitis Act, 1961 thereby praying that election of respondent No.5 Pandit be declared as null and void. Respondent No.5 Pandit and other respondents resisted the said election petition. Respondent No.5 Pandit denied all the allegations made in the election petition No. 05/2007 by filing written statement. Thereafter, an application came to be moved at Exhibit-45 by the petitioner Venkat seeking amendment in the election petition. By way of proposed amendment he sought to introduce paragraph No.9-A to 9-I in the election petition. This application was rejected by the District Judge-I, Nilanga. Being aggrieved by the same petitioner Venkat had earlier filed writ petition No.1298/2008 challenging the said rejection order dated 01.01.2008. Petitioner Pandit, who has won the election of Zilla Parishad Latur, from Block No.52, has filed writ petition No.199/2009. Respondents No.5 to 7 and 10 have lost the said election. The election of the petitioner Pandit is challenged by respondent No.10 Satish by filing Election Petition No.04/2007 in the Court of District Judge, Nilanga, u/s 27 of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961 thereby praying that the election of petitioner Pandit be declared as null and void. Petitioner Pandit also contested the said election petition by filing written statement. {6} During the pendency of the said election petition, an application came to be moved by respondent No.10 Satish on 20.11.2007 seeking amendment. By the proposed amendment, respondent No. 10 Satish sought to introduce para No.9-A to 9-I to the original Election Petition No.04/2007. The said application came to be allowed by the learned District Judge, Nilanga. The said order was challenged by the petitioner Pandit by filing writ petition No. 1413/2008. It appears that writ petition No.1298/2008, filed by petitioner Venkat and writ petition No.1413/2008 filed by Pandit, came to be disposed of by a common judgment on 12.08.2008. This Court had remanded both the matters back for hearing afresh by quashing and setting aside the orders impugned in both the petitions. After remand, both the applications are heard by learned District Judge, Nilanga and came to be disposed of by separate orders by which the amendment application filed by petitioner Venkat in Election Petition No.05/2007 came to be rejected while amendment application filed by respondent No.10 Satish in election petition No. 04/2007 came to be allowed. Hence, these writ petitions challenging both the orders passed in election petitions No. 04/2007 and 05/2007. 5. During the course of submissions advanced across the bar, learned counsel for the parties took me through the entire record and pleadings as well as amended pleadings and orders {7} passed by the Court below. My attention is also drawn by learned counsel Mr.Gunale towards pleadings in para No.3, 8 and 9 of writ petition No.7321/2008. According to learned counsel Mr.Gunale in the said pleadings it is averred by the petitioner Venkat that in the nomination form submitted by respondent No.5, Pandit as well as in the affidavit filed in support of the nomination, he has not disclosed all his assets. In the proposed amendment, petitioner Venkat has projected those immovable assets standing in the name of respondent No.5 Pandit, as his election is challenged by petitioner Venkat on the ground of non disclosure of his assets. According to Mr.Gunale, this amendment is nothing but an explanation to the averments made in the pleadings and it would not amount to introduction of new ground to challenge the election of respondent No.5 Pandit, on which ground the said amendment application is rejected. According to Mr.Gunale, it is erroneous to hold that the proposed amendment is a new ground and hence petitioner Venkat is praying that the said order be quashed and set aside. Per contra, Mr.Hon, learned counsel for respondent No.5 Pandit and petitioner in writ petition No.199/2009 supported the order passed in election petition No.05/2007 whereas opposed the order passed in election petition No.04/2007 by contending that on the same set of facts the amendment application is allowed by the trial court. According to Mr.Hon, on bare perusal of order passed in election petition No.04/2007, it is evident that the fact in respect of non disclosure of assets by Pandit is not pleaded. Therefore, to allow the amendment application in election petition No.04/2007 {8} is nothing but to allow amendment application which is already rejected in election petition No.05/2007. Hence, he urged to allow the writ petition No.199/2009 and dismiss the amendment application allowed by the trial court. At the same time, he supports th order passed in election petition No.05/2007. 6. Learned counsel for respondent No.10, Satish supports the order passed by trial court thereby allowing the amendment application and prayed for dismissal of writ petition No.199/2009. 7. Bearing in mind these submissions, I feel it necessary to consider the provisions of section 27 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, which deals with determination of validity of elections enquiry by the judge. Section 27 is the material section to decide the controversy between the parties, which reads as under: “S.27. Determination of validity of elections; enquiry by Judge ; procedure:- (1) ....... (2) ....... (3) ....... (4) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (V of 1908), the Judge shall not permit- (a) ...... (b) any person to alter or amend any pleading, {9} unless he is satisfied that such application for compromise or withdrawal or application for such alteration or amendment is bona fide, and not collusive.” 8. On bare reading of section 27 (4) (b), it is clear that there is no bar to amend pleadings in the election petition filed u/s 27 of the said Act with a rider that the concerned parties should satisfy the judge that the amendment is bona fide and not collusive. The very purpose of this section is to ensure that election process is not abused or misused by any candidate and that enquiry is not shut out by the collusion between the parties. This section is introduced by the legislature with an intention that by such amendment further instances or corrupt practice or irregularities may be pointed out and in such cases such amendment, if bonafide, to be allowed, even after expiry of the period of limitation prescribed in the Act. 9. Considering this broad principle, it requires to consider that while exercising powers u/s 27 (4) (b) of the Act, it is necessary to bare in mind the pleadings of the parties in original election petition. In paras 8 and 9 of the election petition No. 05/2007, there is reference of the averment that while filing the nomination papers for election, accompanying with affidavit, respondent No.5 Pandit has not disclosed all his assets. This is a fact, which is to be explained by giving evidence. It is a settled {10} principle of law that the evidence is to be leaded and not to be pleaded. Now, by way of proposed amendment, petitioner Venkat intends to bring on record the properties which were not disclosed by respondent No.5 Pandit. In the premise, it cannot be said that the proposed amendment in para 9-A to 9-H is a new ground to challenge the election of respondent No.5, Pandit, as inferred by the trial court. 10. Considering the pleadings in election petition No. 04/2007 in para 9, I find reference about challenge to the election of respondent No.5 Pandit about non disclosure of all the assets by the elected candidate. By way of proposed amendment respondent No.10 Satish intends to explain those properties so far as proposed amendment in 9-A to 9-H are concerned, which is rightly allowed by the District Judge. 11. My attention is drawn towards the proposed amendment sought to be introduced by way of adding para No.9-A to 9-I. I am in agreement with the submissions of learned counsel Mr.Hon that so far as ground 9-I is concerned, the same seeks to introduce a new ground in the original pleadings. This submission is not rebutted by learned counsel Mr.Gunale and Mr.Patil. 12. During the course of arguments, learned counsel Mr.Hon relied on the observations in Head Note B and para 6 and 7 ruling reported in 2005 (4) SCC 480 in the matter of “Kailash {11} V/s Nanhku”. It is observed in the said ruling that the procedure provided in the trial of civil suits under the CPC is not applicable in its entirety to the trial of the election petitions. Applicability of the CPC is circumscribed by two riders: (i) CPC procedure is applicable only “as nearly as may be”, as provided for under S.87 (1), RPA, 1951 and (ii) CPC procedure would give way to any provisions of RPA, 1951 or any rules made thereunder, or any rules made by the High Court concerned under Article 225 or S.129 CPC. I am in agreement with this proposition and I consider the first rider about application of CPC as applicable with the procedure as laid down u/s 27 (4) (b) of the said act, wherein no bar is provided to the amendment of the pleadings, if it is satisfied that the amendment is bona fide and by way of averments in the election petition, there is a control on the mal practice and the irregularity committed by the elected candidate, then such practice to be deprecated. Bearing in mind this proposition the ratio relied on by Mr.Hon, learned counsel is not in that sense applicable to the facts of the present case. 13. Mr.Hon, learned counsel also placed reliance on the ruling reported in 2009 (1) ALL MR 474 in the matter of “Vidya bai V/s Padmalatha”. It is observed in the said judgment that when the trial is commenced under the amended provisions of the Civil Procedure Code, the amendment to the pleadings generally not to allow. The word “generally” requires consideration, which indicates amendment has to be allowed exceptionally and not as a {12} general rule. Considering the facts and circumstances of the present case, this ruling is also not applicable to be case in hand. 14. For the above discussion, it is concluded that the amendment is necessary to explain the facts pleaded in the original pleadings. This Court is of the opinion that the amendment application rejected in election petition No.05/2007 needs to be allowed as far as amendment in para 9-A to 9-H is concerned and to be rejected so far as proposed amendment in para No.9-I is concerned. Similarly, the order passed by learned District Judge, Nilanga on amendment application in election petition No.04/2007 also requires to be modified by maintaining the proposed amendment sought to be introduced in para No.9 -A to 9-H, however to be rejected as far as proposed amendment in para No.9-I is concerned. 15. In the result, both the writ petitions stand partly allowed. Rule is thus made absolute on the terms indicated above and stand disposed of with no order as to costs. [A.V.POTDAR, J.] drp/wp7321-08 {13} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7321 OF 2008 Venkat Rangrao Dhumal PETITIONER VERSUS The State Election Commissioner & others RESPONDENTS WITH WRIT PETITION NO.199 OF 2009 Pandit Vitthalrao Dhumal PETITIONER VERSUS The State Election Commissioner & others RESPONDENTS [CORAM : A.V.POTDAR, J.] DATE : 6th August 2009 Per Court: 1. The order passed today in both the writ petitions, is stayed for a period of four weeks. [A.V.POTDAR, J.] drp/wp7321-08