ep1-09.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ELECTION PETITION NO.1 OF 2009 Indur Kartar Chhugani Age 61, years, Occupation Social Work R/o. 501-502, Pinky Panorama CHS Ltd. 6th Road, Khar (West) Mumbai 400 052 .. Petitioner Versus Priya Sunil Dutt A-1002, 44, Imperial Heights, Zigzag Road, Vandre (West), Mumbai 400 050. .. Respondent Mr.I.K.Chhugani, Petitioner in person. Mr.P.K.Dhakephalkar, Senior Advocate a/w Mr.L.M.Acharya and Mr.Satyam Acharya, for the Respondent. CORAM : S.C.DHARMADHIKARI, J. Reserved on : 9th December 2011 Pronounced on : 23rd December 2011. ORAL JUDGEMENT:- 1] The petitioner Indur Kartar Chhugani by this petition has challenged the election of respondent Priya Sunil Dutt to the Lok Sabha from Mumbai North Central Parliamentary Constituency. It is common ground that the general elections to the Lok Sabha came to be announced and as per the election programme, the nominations were to be filled in by 09.04.2009. 2] It is the case of the petitioner that he filed his nomination papers for Mumbai North Central Parliamentary Constituency on 9th April 2009. The Returning Officer ep1-09.doc 2 Mr.Mahendra Warbhuwan was to act as such only for this constituency. It is petitioner's case that after he entered the cabin of the Returning Officer, the Assistant Returning Officer took nomination papers from him and went through every page. He checked from the papers if the petitioner was a voter from Mumbai North Central Constituency. After satisfying himself about that fact and by confirming from the voters' list, the petitioner states that the Assistant Returning Officer invited his attention to Part III-A in which the petitioner had marked an answer as “NO” to the question “Whether the petitioner was ever convicted for any offence? It is the case of the petitioner that the Assistant Returning Officer directed him to draw two lines across pages 8 and 10 and mention as “Not Applicable”. After he did as told, the Assistant Returning Officer instructed the petitioner to hand over the papers to the Returning Officer along with two affidavits. 3] The petitioner alleges that the Returning Officer had no doubt about the petitioner being a candidate from Mumbai North Central Constituency when the nomination paper was presented. It is the case of the petitioner that the Returning Officer confirmed that the petitioner was a elector from the same constituency by comparing the entries in the nomination paper with the entries in the electoral roll relating to serial number and petitioner's name. The petitioner was not issued any Memo as required in para 15.2 of the Instructions to the Returning Officers. If petitioner was contesting from any other constituency a memo was required to be issued to the petitioner, according to the petitioner, under para No.15.2. ep1-09.doc 3 4] It is the case of the petitioner that in the nomination paper at page 4 are names and signatures of 10 proposers, all of whom are from the Assembly constituency 177 Vandre (West). It is the case of the petitioner that this assembly constituency is within Mumbai North Central and these proposers are entitled to propose him as a candidate for Mumbai North Central Parliamentary Constituency. That is how the name of the petitioner has been proposed. It is the case of the petitioner that the first affidavit which is annexure I starts with the word in bold print “AFFIDAVIT BY CANDIDATE ALONG WITH NOMINATION PAPER BEFORE THE RETURNING OFFICER FOR ELECTION TO PARLIAMENT FROM MUMBAI NORTH CENTRAL CONSTITUENCY.” The second affidavit is Annexure IX-C which also starts with the words in bold print ““AFFIDAVIT BY CANDIDATE ALONG WITH NOMINATION PAPER BEFORE THE RETURNING OFFICER FOR ELECTION TO PARLIAMENT FROM MUMBAI NORTH CENTRAL CONSTITUENCY.” 5] It is the case of the petitioner that he then handed over the nomination form plus the two affidavits to the Returning Officer. The Returning Officer filled in the part IV which is “Receipt for nomination paper and notice of scrutiny” and handed to the petitioner by clearly filling in his handwriting in the columns which are reading as under:- “A. Serial No.25. The nomination paper of Indur Kartar Chhugani a candidate for election from the 29 Mumbai North Central Parliamentary Constituency was delivered to me at my office at 1.52 p.m on 09.04.2009 by the candidate. All nomination papers will be taken up for scrutiny at 11 a.m on 11.4.2009 at office of R.O.29 Mumbai North Central P.C Sd by the Returning Officer 9.4.2009... (All dark printing is ep1-09.doc 4 in the hand writing of the Returning Officer). ....” 6] Thereafter, it is the case of the petitioner that the Returning Officer handed over “Applicant's request form” to the petitioner for the purpose of filling in and handing over to the Returning Officer. The first column of this form is “No. and Name of Parliamentary Constituency”. Against this column, the words were already printed “29 -Mumbai North Central Constituency”. This form was duly filled in and handed over to the Returning Officer by the petitioner. The petitioner was then administered oath by the Returning Officer of the Constituency. The petitioner was then asked to hand over Rs.10,000 as deposit and a receipt was given to him signed by the Returning Officer. This receipt is from the receipt book used only for candidates of Mumbai North Central Constituency. Thus, according to the petitioner after he paid the deposit, he would deemed to be duly nominated for election from Mumbai North Central Constituency. The petitioner in para 11 of the petition states that “check list of documents in connection with filing of nomination” was prepared by the Returning Officer, duplicate of which was handed to the petitioner and in that also the first column is the name of the Constituency where the name of very constituency was filled in. The petitioner also refers to the letter addressed to the Returning Officer of the subject constituency which he acknowledged and, thereafter, he also refers to another letter dated 9th April 2009 with regard to provision of photographs for issue of Identity cards. He states that this letter confirms that he is nominated candidate from Mumbai North Central Constituency. He then refers to the communication/ letters with regard to distribution of election symbols to the nominated candidates and a receipt which was taken from him of having exchanged 16 documents on 9th April 2009 in connection with filing of ep1-09.doc 5 nomination form for this constituency. The petitioner states that he has obtained, under Right to Information Act, 2005, a compact disc (CD) containing the video recording of the Nomination process of 9th April 2009. This is done by the Election Commission of India. The petitioner relies upon a CD of the scrutiny held on 11th April 2009 and he submits that these could be viewed by this Court. It is the case of the petitioner that on 9th April 2009, the Returning Officer sent a list of candidates from whom nomination papers are received for this constituency to the Election Commissioner and in this list the petitioner's name is appearing at serial No.16. 7] The petitioner states that all candidates were called for scrutiny on 11th April 2009. The petitioner was present at 10.30 a.m on this date. He was seated in the first row, according to him. When the petitioner's papers came up for scrutiny, the petitioner, heard the Assistant Returning Officer telling the Returning Officer that this candidate has left first column blank, where it should have been entered “Mumbai North Central Constituency”. It is petitioner's case that he immediately requested that he be allowed to enter three words in the first line of the nomination paper. No objection was raised by any candidates or their agents who were present when this request was made. However, the Returning Officer declined to allow that request and stated that he will have to reject the nomination form. 8] The petitioner pleaded with him and showed him the affidavits and part IV in the same which is filled in by the Returning Officer in his own hand writing. He also showed him the request form and the certificates signed by the Returning Officer ep1-09.doc 6 administering oath but he refused to take any note of them. He also refused time to the petitioner but informed him that he can make a representation after all forms are scrutinised. Accordingly, at around 12 noon the petitioner approached the Returning Officer and Assistant Returning Officer with all papers which he was carrying with him but they expressed their inability to do anything by stating that the Returning Officer has already passed an order and the petitioner will have to file an Election Petition to get the order amended or set aside. 9] These are the pleadings in paras 18 to 21 of the petition. 10] Subsequently, he obtained a certified copy of the order rejecting his nomination paper and by that time the final list of candidates for the election was already released. 11] It is in such circumstances that the petitioner states that the rejection of his nomination paper is illegal and the same is on minor technical ground. He relies upon the guidelines provided by election commission of India to the Returning officer cautioning them not to reject the nomination on flimsy grounds because there is presumption of validity of a nomination paper. He also relied upon Chapter VI of the hand book for Returning Officers (para 10.1) which gives exhaustive list of grounds on which nomination paper can be rejected. According to the petitioner, leaving inadvertently a line blank about name of constituency is not mentioned as a ground for rejection. In these circumstances, he states that by clearly ignoring these important instructions and guidelines that the Returning Officer has erred in rejecting his ep1-09.doc 7 nomination paper. The petitioner thus states that the election of the Returned candidate Priya Dutt be declared void on the ground that the nomination of the petitioner has been improperly rejected. 12] This election petition has been filed in this Court on 5th June 2009 by the petitioner and it was assigned to a learned Judge A.S.Oka, J. On 25th September 2009, this Court passed an order that copy of the election petition be handed over by the Registry to the Advocate for third respondent. Thereafter, this Court gave directions to file written statement. At this stage, it is pertinent to note that the petitioner impleaded the Returning Officer as respondent No.1 and Chief Election Commissioner of India as respondent No.2. The Returned Candidate was impleaded as respondent No.3. 13] From the records it is clear that an application was made by respondent Nos. 1 and 2 being Application No.16 of 2010 seeking deletion of these respondents as they are not necessary parties. The said application was placed before the learned Single Judge of this Court and after hearing both sides, by his order dated 16th September 2010, he allowed the request and directed deletion of the names of respondent Nos. 1 and 2. In pursuance thereof, the amendments were carried out. 14] Since directions were issued to respondents to file their written statement, the Returned Candidate filed her written statement on 1st December 2009. In the written statement, she pointed out that she contested the election held for the Lok Sabha from 29 – Mumbai North Central Constituency as a candidate of Indian National Congress ep1-09.doc 8 party. Results of the elections were declared after polling was completed on 16th May 2009. The respondent No.3 secured 3,19,252 votes and by a margin of 1,74,555 votes she was declared elected. This election petition is nothing but an attempt to harass her. It has no merit and deserves to be rejected. She states that the rejection of the nomination paper by the Returning Officer is on the ground that the nomination paper of the petitioner contains a defect which is of substantial character. The nomination paper prescribed for the said Election contains blank spaces where the name of the constituency from where the candidate wants to contest has to be indicated while submitting the nomination paper to the Returning Officer. This space was left blank by the petitioner in his nomination form/paper submitted to the Returning Officer on 9th April 2009. Thus, the nomination paper submitted by the petitioner to the Returning Officer was not complete. The Returning Officer has rightly rejected the nomination paper of the petitioner. Leaving the column blank, as aforesaid, in the nomination paper is a defect of a substantial character. It is in such circumstances that the petition deserves to be dismissed. As far as the contents of the election petition regarding the guidelines and the handbook for Returning Officers are concerned, the Returned Candidate does not admit them but in any case it is submitted that the interpretation placed by the petitioner thereon is incorrect. It is then contended that once the nomination paper fails to comply with the mandate of section 33 of Representation of Peoples Act, 1951 (RP Act for short), then, there is no alternative but to reject it. No amount of guidelines or instructions can over-ride the provisions of RP Act. A scrutiny of the nomination paper is contemplated by section 36 and section 36(2)(b) enables the Returning Officer to reject a nomination paper on the ground that there has been failure ep1-09.doc 9 to comply with any provisions of section 33 and 34 of the RP Act. Section 33 mandates that a candidate must deliver her nomination paper complete in the prescribed form to the Returning Officer. The petitioner admits that leaving a column blank in the nomination paper means that it is incomplete and, therefore, not in compliance with section 33 of the RP Act. Such an incomplete nomination paper can be rejected. For all these reasons and when section 36(5) of the RP Act is inapplicable that it is prayed that this election petition be dismissed. 15] The written statement deals with the petition parawise and denies each and every statement and allegation therein. None of the documents annexed to the petition have been admitted including the compact discs containing the video recording of the events at the time of filing and scrutiny of nominations. 16] Upon these pleadings, the learned Single Judge framed Issues which read as under:- “(i) Whether the petitioner proves that his nomination paper was improperly and illegally rejected by the Returning Officer? (ii) Whether the petitioner proves that the Returning Officer ought to have allowed the petitioner to fill up the blank space left in the first column in Part II of the nomination paper of the petitioner at the time of conducting the scrutiny of the nomination paper? (iii) Whether the petitioner proves that the election of the third respondent is ep1-09.doc 10 liable to be set aside under section 100(1)(c) of the Representation of Peoples Act, 1951? (iv) What Order?” 17] The petitioner entered the witness box and filed an affidavit in lieu of examination in chief. That is a reiteration of the averments in the petition. This affidavit was filed by him on 5th March 2010 and he identified his signature and confirmed the contents of the said affidavit. It was taken on record and marked Exh.P-1. He tendered a compilation of 18 documents and after hearing both sides, the learned Single Judge passed the following order dated 12th April 2010 marking the documents:- “1. I am shown my affidavit dated 5th March, 2010. The affidavit bears my signature which I identify. The contents of the Affidavit are true and correct (the affidavit is marked as Exhibit P-1). 2. (The Petitioner appearing in person has tendered a compilation of 18 documents. He states that true photocopies of the documents have been annexed to the affidavit in lieu of Examination- in-Chief. Compilation is taken on record and marked as Exhibit. Z for identification.) 3. (I have heard the Petitioner-in-person and the learned Counsel appearing for the Respondent No.1 as well as the Respondent no. 3 on the issue of marking the documents. The document annexed as P-4 to the affidavit is the receipt of the nomination paper and notice of scrutiny issued to the Petitioner by the 1st Respondent. The learned Counsel appearing for the 1st Respondent on instructions states that the document has been issued by the 1st Respondent. Hence, the said document is marked as Exhibit P-2. The document annexed as P-12 is an office copy of a letter addressed by the Petitioner to the 1st Respondent. The learned Counsel appearing for the 3rd Respondent submits that in the affidavit, there is no proof of ep1-09.doc 11 handwriting and signature on the said document. The learned Counsel 1st appearing for the respondent on instruction states the original of the said letter was received by the 1st Respondent. In paragraph 23 of the affidavit in lieu of Examination-in- Chief, in substance, it is stated that the letter is in the handwriting of the Petitioner. Hence, the said document has been duly proved and the same is marked as Exhibit P-3. The document P-13 purports to be a photo copy of the letter sent by the Petitioner to the 1st Respondent. This is not the original office copy. Therefore, the said document P-13 cannot be admitted in the evidence. Document P-14 in the compilation is a certified copy issued by the 1st Respondent of nomination paper containing part-I, part-II, part-IV and part-V. It being certified copy, the same is admitted in evidence and marked as Exhibit P-4. The document P-17 purports to be an office copy of a letter addressed by the petitioner to the Chief Election Commissioner of India the copies whereof have been allegedly forwarded to the Secretary and Chief Electoral Officer, Maharashtra, General Administration Department, as well as to the Central Observers. It bears the rubber stamp of the General Administration Department of the government of Maharashtra. The said document as the office copy of the letter which was received by General Administration Department of the State of Maharashtra will have to be admitted in evidence. The said document is marked as Exhibit P-5. The document P-16 is a certified copy of the order dated 11th April 2009 passed by Returning Officer of 27, Mumbai North west Parliamentary Constituency. It being a certified copy, the same is marked as Exhibit P-6. 4] The documents P-1, P-2, P-3, P-5, P-6, P-7, P-8, P-9, P-10 and P-11 are stated by the Petitioner to be true photocopies made available to the Petitioner under The Right to Information Act, 2005. The document at page 217 of the compilation and document P-15 are also stated to be true copies supplied to the Petitioner under the said Act of 2005. The Learned Counsel appearing for the 1st Respondent on instructions confirmed that the said copies are true photocopies furnished to the Petitioner under the said Act of 2005 and the same are the true copies of the originals. The learned Counsel 3rd Respondent submits that there is no formal proof of signatures and contents of the said documents incorporated in the affidavit. He submits that copies of applications made by the Petitioner for obtaining the said documents are not placed on record. He submits that as there is no proof of contents and execution of the said documents , the same cannot be admitted in the evidence. He submitted that there is no proof of authenticity and genuineness of the said documents. However, the learned Counsel appearing for the 1st ep1-09.doc 12 Respondent on instruction has confirmed that the said documents are true photocopies of the originals supplied to the Petitioner on the basis of his applications under the said Act of 2005. Therefore, the said documents will have to be marked as exhibits by keeping the issue of proof of execution and contents thereof open. The documents are accordingly marked as Exhibit P-7, Exhibit.P-8, Exhibit.P-9, Exhibit.P-10, Exhibit.P-11, Exhibit.P-12, Exhibit.P-13, Exhibit.P-14, Exhibit.P-15, and Exhibit.P-16 respectively. For the same reasons and subject to same clarification, the document at Page 217 (letter dated 9th April, 2009) is marked as Exhibit.P-17. The document P-15 is marked as Exhibit.P-18.)” 18] Prior to the deletion of first respondent, the Government Pleader, High Court, (O.S) Appearing on his behalf cross examined the petitioner. The petitioner stated that he was aware that nomination form duly filled in has to be submitted. However, while admitting that he has to mention in the nomination form full name of the Constituency from which he intends to contest the election, he says that this is subject to human error. He further admits that in the present case his nomination form was blank insofar as the name of the parliamentary constituency. He states that inadvertently it was kept blank. He states in answer to the question that the relevant details in the nomination form has to be supplied before the scrutiny of the nomination paper. In an answer to another question, he states that the details of the constituency are reflected from Part II of the nomination form. He volunteers to state that these details are reflected in the request form (Exh.P-10). He states that failure to give description of the Parliamentary Constituency in the first line of part II of form 2-A of the nomination paper is not a substantial defect because it is not necessary to fill in the details in the first line. 19] He states in an answer to a question posed to him in cross examination by the ep1-09.doc 13 Advocate for the respondent – returned candidate, that the details of the registration as a voter have been entered in part II of the nomination form and it is not necessary to submit electoral roll along with nomination form. He states that it is not correct to say that he was not registered as voter in any area forming part of Mumbai North Central Constituency. 20] In his further cross examination by the learned Counsel for Returned Candidate, he states thus:- “It is not true to say that the information filled in Part – II in Exhibit P-4 is not correct. It is true to say that on Part – II in Exh.P4 I have referred to Mumbai North Central Parliamentary Constituency only at one place. It is true to say that in the last line of Part – II I have referred to Mumbai North Central Parliamentary Constituency for the purpose of stating that I am a registered voter in the said constituency. I say that if I was to contest from some other constituency than Mumbai North Central, I would have been required to file an affidavit. Q. I put it to you that as you have not set out in first line of Part II the details of the constituency from which you intended to contest, a person who reads the nomination paper will not be in position to understand from which constituency you want to contest the election. Ans. I have presented the nomination from to the Returning Officer for Mumbai North Central Parliamentary Constituency. Therefore, the Returning Officer knew that I was desirous of contesting the election from the said Constituency. Q. Is it correct to say that a Returning Officer appointed for one constituency can be a Returning Officer for other constituencies as well? Ans. I cannot say anything. I entered the cabin of the Returning Officer who was appointed for Mumbai North Central Parliamentary Constituency for the purpose of filing nomination paper. As per the law, a Returning Officer can be appointed as a Returning Officer for several constituencies. 10 It is true that the object of first part of Part II is to indicate as to from which constituency the candidate desires to contest the election. ep1-09.doc 14 (The attention of the witness to the document marked as Exh.P-2). I received this document on 9th April 2009. I state that I received the said document few minutes after I filed my nomination paper. I do not remember whether the document at Exh.P-2 was attached to the blank nomination