1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.8655 OF 2007 Suresh Sidramappa Hasapure .. Petitioner Versus Basavraj Mallesha Bagale & Ors. .. Respondents Mr.V.A.Thorat with R.V.Govilkar & V.A.Sugdare i/b. Amit Karkhanis for petitioner Mr.S.G.Kudle for respondents. CORAM : S.C.DHARMADHIKARI, J. Reserved: 6th December 2007 Pronounced: 4th March 2008. ORAL JUDGEMENT:- . Rule. By consent rule made returnable 2 forthwith. Respondent No.1 waives service. Other respondents are non-contesting parties. Hence, there is no need to serve them. Heard Counsel for parties. 2. By this petition under Article 227 of the Constitution of India, the petitioner challenges the Judgement and order dated 15th November 2007 delivered by Additional Commissioner, Pune Division, Pune in Election Petition No.11 of 2005. This election petition was filed by respondent Nos.1 and 2 challenging the election of the petitioner to the Board of Directors of Solapur Dist.Central Coop.Bank Ltd. The election petition was filed under section 144-T of the Maharashtra Cooperative Societies Act, 1960 (for short MCS Act). 3. The facts leading to filing of this election petition are as follows:- 3 (a) The election of the Board of Directors of the Solapur Dist.Central Coop.Bank Ltd., Solapur (for short "Bank") for the period 2005-2010 was held in or about May 2005. The nominations were to be accepted from 16th May 2005 to 24th May 2005. Petitioner filed his nomination as one of the candidate for the seat reserved for Economically Weaker Section (EWS for short) and complied with all the formalities. Respondent Nos. 1 and 2 also filed their nominations for the said seat. The nomination forms of respondent Nos. 1 and 2 came to be rejected whereas that of the petitioner was accepted and accordingly he was declared as elected unopposed on 10th June 2005. (b) Respondent Nos.1 and 2 filed Election Petition No.11 of 2005 under 4 section 144-T of the said Act on 11th July 2005 before the Commissioner, Pune Division, inter alia, contending that election of the petitioner to the Board of Directors of the Bank from economically weaker section constituency be set aside and for consequential reliefs and interim stay. (c) Respondent No.6 initially granted stay to the election of the petitioner by Order dated 20th July 2005. However the same was vacated on 9th August 2005. (d) The petitioner filed his say dated 1st February 2006 to Election Petition No.11 of 2005, inter alia, contending that in terms of Government Circular dated 5th May 2001, the petitioner is validly classified as belonging to weaker section. In the 5 reply/say petitioner contended that the Additional Commissioner has no power to decide the validity of the election. (e) In the meanwhile, on or about 4th January 2006, the Respondent No.1 gave an application urging that he be permitted to withdraw election petition filed by him and accordingly by order dated 4th January 2006, the said application was allowed. (f) Petitioner states that Respondent No.1 again filed application dated 8th March 2006, inter alia, urgingthat he be again impleaded as petitioner in the main election petition. The petitioner therein contended that although there is no provision of review or to prosecute the petition which has been disposed of as withdrawn, the Additional 6 Commissioner, Pune Division, Pune allowed said application and recalled the order dated 4th January 2006 allowing respondent No.1 to withdraw from the petition and further permitted him to continue as petitioner in the said election petition No.11 of 2005. (g) The issues were framed in the said election petition on 21st June 2006. Respondent No.1 filed his affidavit of Evidence which was verified on 30th August 2006 and he was cross examined on 30th August 2006. (h) Respondent No.2 filed his affidavit of Evidence dated 4th July 2006. Purshis dated 4th September 2006 was filed inter alia contending that the cross examination of respondent No.1 be treated as that of respondent No.2. 7 Respondent No.2 agreed for the same, except, with regard to certain aspects. (i) Petitioner filed his affidavit of evidence dated 2nd September 2006 which was verified on 4th September 2006 and he was cross examined on 4th September 2006 and 13th September 2006 by Advocate of respondent No.1 i.e. Original petitioner No.1. The petitioner further submits that the Advocate of respondent No.2 i.e. original petitioner No.2 also started cross examining the petitioner and therefore the same was objected by the Advocate of the petitioner. Petitioner took objection in writing by letter dated 20th September 2006 (Exh.88). Advocate for respondent No.2 filed his say dated 20th September 2006 to the objections. The petitioner filed application dated 27th September 2006 (Exh.90) inter alia 8 praying that if it is held that respondent No.2 could continue cross examination, then, the Court may pass order of bifurcation of petition. By an order dated 6th October 2006 passed by Additional Commissioner, Pune Division the application of the petitioner taking objection to respondent No.2 from continuing with the cross examination of petitioner was rejected. (j) The petitioner filed Writ Petition No.6702 of 2006 challenging the said order dated 6th October 2006. However, the same was rejected by order dated 10th January 2007. (k) Thereafter, the Election Petition was adjourned to 7th March 2007 for conducting cross examination of petitioner. However, since the elections 9 of Zilla Parishad were being held during relevant time, the petitioner could not remain present and, therefore, the Additional Commissioner adjourned the matter for final hearing. Respondent No.1 completely cross examined the petitioner and respondent No.2 partly cross examined the petitioner. Additional Commissioner has considered and referred to the evidence of petitioner in his judgement. Respondent Nos. 1 and 2 filed joint written argument dated 19th September 2007, however, they have not objected to the Evidence of the petitioner being considered by the Additional Commissioner. In fact in their written arguments they have relied upon the evidence of petitioner. (l) In the meanwhile, petitioner’s 10 Advocate expressed his inability to appear in the matter. The newly appointed Advocate took inspection of the record and found that only part of the record is exhibited and other part is not exhibited and, therefore, filed application dated 28th March 2006 (Exh.101) praying that the record be properly exhibited. (m) Petitioner filed application (Exh.102), inter alia, contending that the respondent Nos. 1 and 2 are not the "Aggrieved persons" as contemplated under Section 144-T of the said Act read with Rule 74 of the Maharashtra Cooperative Societies Specified Societies Election to Committee Rules, 1971. However, the said application was rejected by order dated 9th May 2007. Petitioner filed Writ Petition in this Court challenging the 11 said order but the same was also rejected. (n) Respondent Nos. 1 and 2 filed their joint written argument dated 19th September 2007. Petitioner, thereafter, sought time for filing his argument however, the same was rejected. (o) The Additional Commissioner by his Judgement and order dated 15th November 2007 set aside the election of the petitioner to the Board of Directors of the Bank from economically weaker section constituency and the election was declared void. 4. Mr.Thorat, learned Senior Counsel appearing for petitioner submitted that the impugned order is ex facie bad in law and deserves to be quashed and set aside. He submits 12 that the Commissioner has failed to abide by the mandate of section 144T of the Maharashtra Coop.Societies Act. The election disputes have to be tried and decided after following the procedure prescribed in the Rules. The Rules set out a complete code for trial of election petitions. Thereunder, various stages have been set out which take care of various contingencies and avoid an outcome which would defeat the will the electorate. The election results are not to be interfered with lightly. He submits that very strong proof has to be placed for the elected candidates’ election to be declared as null and void. The burden is upon election petitioner. He submits that at the relevant time, the petitioner had satisfied the criteria prescribed under Circular No.CSL 2001/GR-20/15 C. He possessed land below (2) two hectares and this fact was clearly established by the documents so also 7/12 extracts in respect thereof. 13 5. It is submitted that the Additional Commissioner, Pune Division having allowed the petitioner No.1 to withdraw from the said Election Petition, was not entitled to review his own order and hence the subsequent order of Additional Commissioner allowing the petitioner No.1 to again join the Election proceedings is beyond the scope of his authority. The decision, therefore, is void ab-initio. 6. The election petition was filed by two persons and hence, they were not entitled to have two separate lawyers for conducting the proceedings including separate cross examination of the present petitioner in the said election petition. This has resulted in complete miscarriage of justice. 7. According to Mr.Thorat, what matters is that at the relevant point, the petitioner herein had satisfied the criteria prescribed under 14 Circular No.CSL 2001/CR-20/15 C and had land below 2 hectares. 8. Mr.Thorat further submits that as per law, the correct land-holding can be ascertained by examining the details in Form 8A in the Register of land records. It is submitted that the 7/12 extract is not the conclusive record as far as determining the exact quantum of agricultural land-holding is concerned. 9. As per the Land Revenue Code, Pot-Kharaba is that part of the land which may be barren, marshy or completely uncultivable. Such portion of the land is excluded from the total land holding of an individual. In the present case, petitioner’s land holding at Village Barur is shown as 3.03 ars in the 7/12 extract, which is not the exact land holding of the petitioner. The petitioner had a total of 3.03 ars of land, out of which he sold 2.88 ars and the balance 15 with him is 0.80 ars. The Pot Kharaba land in the present petitioner’s case is 0.15 ars. Hence to arrive at the true and correct interpretation, 0.15 ars of Pot Kharaba land should be excluded out of 3.03 ars of land and if that is done, then, total land holdings of the petitioner at village Barur will be about 0.80 ars. The bracketed portion in the 7/12 Extract is pot kharaba land which indicates the exclusion of the land holding of the petitioner. Hence, the land holding of petitioner is less than 2 hectares. 10. It is submitted that respondent No.1 is neither a member of the Solapur Dist.Coop.Bank nor is he a person covered by section 73B of the Maharashtra Cooperative Societies Act, 1960 for being entitled to contest the elections of the Solapur Dist.Coop.Bank, which fact is nowhere disputed by the respondents, either in the present petition or in the Election Petition filed before the Additional Commissioner, Pune 16 Division. Hence, according to Mr.Thorat, the election petition filed by the respondent No.1 is bad, ab-initio and ought to have been summarily rejected. 11. Mr.Thorat further submitted that the Income of the petitioner, excluding agricultural income, was Rs.13,500/- as covered under the Government Resolution and hence the petitioner has satisfied the criteria of being belonging to the Economically Weaker Section. 12. The second affidavit which states that the income of the petitioner as Rs.18,000/- was an affidavit stating the total income of the petitioner which was filed altogether for a different purpose, totally unconnected with the facts of the present petition. The income certificate issued by the competent authority is for an individual and not for the entire family. The certificate granted to the petitioner of 17 belonging to the "Economically Weaker Section" under Section 73B underwent an extensive scrutiny of the Tahsildar, S.D.O. and Collector, and therefore, the petitioner was and is not entitled to re-open the same and cannot be now made a subject matter of scrutiny by the Additional Commissioner, Pune Division in an Election Petition. 13. In any event, Mr.Thorat, states that the decision of the Additional Commissioner, Pune Division proceeds on erroneous footing and is totally based upon the affidavits filed by the petitioner herein, which were for securing the income certificate and the other is for classification under economically weaker section. For all these reasons, it is submitted that this petition be allowed with costs. 14. On the other hand, Mr.Kudle submits that the impugned judgement and order does not require 18 any interference and the petition be dismissed. 15. It is urged by Mr.Kudle that the Definition of "Total Annual Income" required to fulfil the criteria of economically weaker section contemplated under section 73BB of the Act is not satisfied by the petitioner in this case. He is holding land beyond two hectares, particulars of which are set out in the election petition and the affidavit in reply. They are at two villages viz., Barur and Nimbargi. The holding from these villages is four hectares and 23 ars. In order to show that the holding is two hectares or less, the petitioner sold two hectares out of three hectares and three ars. which was shown in his name, at Village Barur, to one Chandrakant Shingade, a resident of Mandup. However, the distance between the two villages is 20 to 25 kms. and, therefore, this transaction is sham and bogus. The said Shingade is the Driver of petitioner. The land is, therefore, 19 not held by said Shingade genuinely and there is no entry to that effect as well. Assuming that it is a genuine transaction, even in that case one hectare was still standing in the name of petitioner and in addition to this there is land at Nimbargi admeasuring about one hectare and 20 ars. Thus, the total land holding admeasures about two hectares and 23 ars. The petitioner, therefore, does not fall within the definition of economically weaker section. Insofar as, income criteria is concerned, the petitioner has placed before the Court a false version by contending that there is a joint family income. However, even that criteria has not been fulfilled. In these circumstances, the order under challenge does not require any interference. 16. For properly appreciating the rival contentions, a reference can usefully be made to Section 73B of the MCS Act. The said provision reads thus:- 20 "73-B: Reservation of seats on the committees of certain societies for Scheduled Castes, Scheduled Tribes, Other Backward Classes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Classes and for members of weaker section and election thereeto:- (1) Notwithstanding anything contained in this Act or in the Rules made thereunder or in any bye-laws of any society, on the committee of such society or class of societies as the State Government may, by general or special order direct, four seats shall be reserved - (a) One for the members belonging to the Scheduled Castes or Scheduled Tribues; 21 (a-1) One for the members belonging to the Other Backward Classes; (a-2) One for the members belonging to the de-notified Tribes (Vimukta Jatis), Nomadic Tribes or Special Backward Classes; and (b) one for the members belonging to the weaker section; 17. A bare perusal of the said provision would indicate that the Legislature intended that the Committee of the Coop.Society or class of societies as per the general or special order of the State Government should be broad based and representation should be given to all sections of societies. Therefore, the Legislature provided that one of the members of the Committee of the Society specified in sub-section 1 of 73B should 22 be belonging to weaker section. The expression "member belonging to Weaker Section" means a member or such class of members as the State Government may by general or special order from time to time declare. Now, the new definition which has been stipulated of small farmer is the one mentioned in the order passed by the State Government, more particularly referred above. 18. In such circumstances, the issue that requires consideration in this petition is whether the petitioner had satisfied the criteria for being elected from the category of Economically Weaker Sections or that the election petitioner has proved that the petitioner does not satisfy the said criteria. 19. For deciding the said issue, reference will have to be made to the election petition, which is presented. The election petition which is filed and a copy of which is annexed as 23 Annexure A (Pg.24) states that the date of receipt of nomination forms was 16 to 24th May 2005. Petitioner filled in his nomination form on 24th May 2005 for the category of "Economically Weaker Section". The scrutiny of Nomination papers began on 26th May 2005. The allegation is that the petitioner has filed a bogus and illegal nomination. The petitioner has produced a certificate in support of his claim that he belongs to economically weaker section but that certificate itself is false and bogus. That has been obtained by him by misleading the authorities. Respondent No.1 had objected to this nomination form being accepted but on account of political pressure exerted on the election machinery, the nomination form of the petitioner was accepted. On these grounds, the election petition has been presented challenging petitioner’s election. 20. It was urged that the petitioner is 24 belonging to Rashtrawadi Congress Party and to be precise, he is Dist.President of Rashtrawadi Youth Congress. The President of the Dist. Nationalist Youth Congress and petitioner are politically connected. The petitioner has stated that he is a member of one Shri Vetal Dudh Utpadak Sahakari Sanstha Maryadit, Badalewadi, Post Nimgaon, Taluka Madha, Dist.Solapur. The petitioner is resident of Nimbargi, South Solapur, Dist.Solapur. Therefore, he has no connection with the above society which is situated at Taluka Madha. In such circumstances, he could not have contested the elections as he is disqualified. It appears that the entire election petition alleges that the petitioner could not have been a member of the said Vetal Sahakari Sanstha. He cannot represent the said Sanstha to the Solapur Dist.North Coop.Bank whose elections were being held. In such circumstances, nomination of petitioner could not have been accepted. The Certificate from the 25 said Vetal Sanstha is also false and bogus. 21. Thus, in the original election petition, there are no allegations save and except contending that the certificate that the petitioner belongs to Economically Weaker Section category is false and bogus and the petitioner and that the petitioner is disqualified from contesting elections in that category. The election petition is full of allegations with regard to the petitioner’s representation of the Vetal Sanstha. 22. In such circumstances, the original petition did not contain any averments, save as referred above. Thereafter, the original election petition was sought to be amended and an allegation was made that the petitioner has been elected as Director by indulging in illegal and corrupt practices. He has misled the authorities by filing bogus documents with regard to his 26 income and land holding. However, this amendment was not allowed. The amendment application itself states that the same is not merely incorporating particulars which are material but it is a substantive one praying for additional relief on added grounds and reasons. The grounds on which an election can be declared as void are set out in Rule 81. They are distinct and not connected with each other. The election petition was initially filed alleging wrongful rejection of the nomination form of respondent No.1, whereas, by amendment altogether new case of corrupt practice and misleading so also collusion in obtaining the EWS certificate is introduced. The amendment is not allowed. However, Additional Commissioner has proceeded on the basis that it is allowed and permitted oral evidence being led. This is ex facie erroneous and illegal. 23. The Additional Commissioner in the 27 impugned order observes that the Election Petition was filed on 11th July 2005. Thereafter, an application for Amendment is made and the proposed amendments are placed on record on 21st October 2005. The date of original election petition is mentioned by the Commissioner as 20th July 2005 and the amendment application is moved thereafter before the Divisional Commissioner. The Additional Commissioner called for the reply of the present petitioner on the amendment application on 7th February 2006. However, the proposed amendments to the original election petition were not allowed to be carried out and the original petition stood as it is. This is the finding on internal page 4 running page 118 of the impugned order. It appears that the amendment application has been specifically rejected but the petitioner states that the order of rejection of the amendment application is not available with him. True it is that Mr.Thorat did not produce this 28 order but when the impugned order itself states that the amendment application was rejected, then, to my mind non production of the copy of the said order is not fatal. 24. The amendment application is not just for supplying certain particulars but contains additional grounds. In the writ petition there are written submissions filed and all the allegations that respondent No.1 makes in the written submissions are based upon the pleas in the amendment application. However, once the amendment application itself is not allowed, then, these allegations have to be kept out of consideration and omitted totally. 25. Election petition is not a normal remedy but a special one. It is a special jurisdiction. Just as there is no fundamental or common law, right to vote and contest election, similarly, there is no fundamental right to dispute the 29 election. All these are creatures of the Statute and, therefore, must abide by the Limitations stipulated in it. (see paras 7 and 8 of the decision reported in A.I.R. 1982 S.C. 973 at pg.986-87 - Jyoti Basu Vs. Debi Ghosal) 26. In A.I.R. 1975 S.C. 290 (Rahim Khan Vs. Khurshid Ahmed and Ors.), the Supreme Court has observed this with regard to election dispute:- "8. A few prefatory observations are necessary before we discuss the evidence, apply the law and reach our conclusions. It is of the first importance that elections must be free and fair if the democratic system is not to founder. Not long ago a Chief Justice of this Court delivering the Lajpatrai Memorial Lecture, observed:- ".Untruth before elections, 30 during elections and after elections seem to be too prevalent for a healthy political society". He also tartly remarked in that speech:- "There is always a danger of the failure of democracy. "Remember" said John Adams, "remember, democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a democracy that did not commit suicide". We must realise that this is entirely true." The Court is the conscience keeper of the constituency, as it were, in the maintenance of the purity of elections to the extent they are litigated in Court. Shah, J. in Harcharan Singh’s case (1969) 1 SCA 138 at p.145 = (A.I.R. 1968 31 S.C. 1500) at p.1504) observed:- ". The primary purpose of the diverse provisions of the election law which may appear to be technical is to safeguard the purity of the election process, and the Courts will not ordinarily minimise their operation." ". We have therefore, to insist that corrupt practices, such as are alleged in this case, are examined in the light of the evidence with scrupulous care and merciless severity." "9. However, we have to remember another factor. An election once held is not to be treated in a light-hearted manner and defeated candidates or 32 disgruntled electors should not get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing a serious element of uncertainty in the verdict already rendered by the electorate. An election is a politically sacred public act, not of one person or of one official but of the collective will of the whole constituency. Courts naturally must respect this public expression secretly written and show extreme reluctance to set aside or declare void an election which has already been held unless clear and cogent testimony compelling the Court to uphold the corrupt practice alleged against the returned