IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ELECTION PETITION NO.10 OF 2004 Shri Arun Dattatray Sawant, Adult, Occ: Business, residing at Shrikrishna Prasad Building, Ambernath Road, Belwali, Post Kulgaon (West), Taluka Ambernath, PIN 421 503, Dist.Thane. ...Petitioner V/s. Shri Kisan Shankar Kathore, Adult, residing at Sagaon (Patil Pada), Post Pimploli, Taluka Ambernath, Dist.Thane. ...Respondent ....... Mr.B.D.Joshi with Mrs.Anjali Helekar for Petitioner. Mr.Pradeep R.Kadam with Mr.Ramakant Paranjape & Mr.M.M.Vaidya for Respondent. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. AUGUST 16, 2007. AUGUST 16, 2007. AUGUST 16, 2007. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This Election Petition is filed by a voter of 56, Ambernath Legislative Assembly Constituency in Thane District for declaration that the : 2 : nomination of the Respondent has been improperly accepted by the Returning Officer of 56, Ambernath Legislative Assembly Constituency and the election of Respondent is void due to non-compliance of the provisions of the Constitution of India and the Representation of People Act and Rules and Orders made under the Act. The Petitioner has asked for a declaration that the election of the Respondent as a member of Maharashtra Legislative Assembly from Constituency No.56, Ambernath Legislative Assembly Constituency in the election held on 13th October 2004 is null and void. 2. The relevant facts to be borne in mind are that the Respondent filed his nomination on 20th September 2004 as official candidate of the Nationalist Congress Party and his symbol was "Clock" in respect of the elections to be held on 13th October 2004. The objections were filed in relation to the nomination of the Respondent, however, the Returning Officer accepted his nomination. The Polling in the Constituency was held on 13th October 2004 and the result thereof was declared on 16th October 2004. In the said : 3 : election, besides the Respondent, other five candidates were in the fray. Out of them, two were independent candidates, the other three were the official candidates of political parties namely; Bahujan Samaj Party, Shivsena and Samajwadi Party. The results declared by the Returning Officer in Form 21 E on 16th October 2004 is as follows : "----------------------------------------------------------- S.No. Name of Candidate Party Name of Votes Affiliation Polled ------------------------------------------------------------ 1. Kathore Kisan Shankar National Congress 1,14,675 Party 2. Dolas Bhimrao Rupaji Bahujan Samaj Party 5,086 3. Shaikh Sabhirbhai Shivsena 1,06,582 Haji Karim 4. Manoj Jeetpratap Singh Samajwadi Party 6,463 5. Gaikwad Sudha Naresh Independent 15,184 6. Bendale Kumud Ramdas Independent 3,484 ----------------------------------------------------------- 2,51,474 ------------------------------------------------------------ Total Number of Electors : 545810 Total Number of Valid Votes polled : 251474 Total Number of rejected votes : 117 Total number of tendered votes : 34 : 4 : I declare that .. KATHORE KISAN SHANKAR (Name) of AT-POST-SAGAON, PATILPADA, TAL.AMBERNATH (Address) has been duly elected to fill the seat. Place :- Ambernath Date :- 16/10/2004 Returning Officer, 56-Ambernath Assembly Constituency" . Out of the total valid votes polled, the Respondent secured 1,14,675 votes and his nearest rival from Shivsena Party secured 1,06,582 votes. As a result, the Respondent was declared as elected candidate. 3. The Petitioner who asserts to be one of the voter from the 56, Ambernath Legislative Assembly Constituency, has approached this Court to declare the election of the Respondent is void and invalid on the ground under Section 100(1)(d)(i) of improper acceptance of Respondent’s nomination and also on the ground provided by Section 100(1)(d)(iv) of the Act. According to the Petitioner, the nomination of the Respondent and : 5 : his consequential election was void on account of non-compliance of the provisions of the Constitution of India or of the Representation of People Act or any Rules or Orders made under the Act. The basis on which such relief is sought, is elaborated in the Election Petition to which I shall make reference a little later. 4. According to the Petitioner, the election in question was not conducted as per the procedure, Rules and Regulations as well as mandatory directives of the Apex Court and the orders issued by the Election Commission. The Petitioner has referred to the exposition of the Apex Court in the case of Union of India vs. Association for Union of India vs. Association for Union of India vs. Association for Democratic Reforms and Anr. reported in AIR 2002 Democratic Reforms and Anr. reported in AIR 2002 Democratic Reforms and Anr. reported in AIR 2002 SC 2112 SC 2112 SC 2112, wherein the Apex Court has held that the powers of Election Commission are plenary and include all powers necessary for smooth conduct of free and fair election. According to the Petitioner, the purport of the exposition of the decision is that the directions issued by the Election Commission of India are intended to facilitate the voters to get the relevant : 6 : information of every candidate contesting the election on matters such as criminal cases against him, his educational qualification as well as his/her assets and liabilities or of his/her spouse or dependent relations. That information is vital to assess the candidate’s competence and suitability. The Petitioner has then referred to the direction issued by the Election Commission on the basis of the abovesaid decision of the Apex Court which postulates that each candidate contesting the Election to the Legislative Assembly shall submit as a necessary part of his nomination paper, information on affidavit relating to matters specified in the said directives. The directions issued by the Election Commission also provided that if such affidavit is not accompanied along with the nomination paper, the nomination paper shall be liable for rejection by the Returning Officer. The directives further provided that furnishing of any wrong or incomplete information or suppression of any material information by any candidate in the said affidavit, may also result in the rejection of his nomination paper, where such wrong or incomplete information or suppression of : 7 : material information is considered by the Returning Officer to be a defect of substantial character, apart from inviting penal consequences under the Indian Penal Code for furnishing wrong information to a public servant or suppression of material facts before him. 5. In Para 5 of the Petition, the Petitioner has then referred to the promulgation of Representation of People Amendment (Amendment) Ordinance 2002 (No.4 of 2002) on 24th August 2002 so as to amend the Representation of People Act, 1951 by inserting Section 33-A, 33-B and Section 125-A and amending Section 169 of the Representation of People Act, 1951. It is then stated that by virtue of Section 33-B of the Ordinance, the directives issued by the Election Commission under order dated 28th December 2002 were rendered ineffective. As a result, the said amendment was challenged before the Apex Court in the case of Peoples’ Union for Civil Liberties Peoples’ Union for Civil Liberties Peoples’ Union for Civil Liberties (PUCL) & Anr. vs. Union of India and Anr. etc. (PUCL) & Anr. vs. Union of India and Anr. etc. (PUCL) & Anr. vs. Union of India and Anr. etc. The Apex Court, in its decision reported in (2003) (2003) (2003) 4 SCC 399 4 SCC 399 4 SCC 399 held that Section 33-A introduced by the : 8 : Parliament in relation to pending criminal cases and past involvement in such cases is reasonably adequate to safeguard the right to information vested in the voter/citizen. However, the Apex Court proceeded to declare Section 33-B as null and void and clarified that the earlier instructions of Election Commission of India dated 28th June 2002 would continue to be operative, subject to the directions issued by the Apex Court. It is then stated that the Election Commission on the basis of the said decision, on 27th March 2003 and in exercise of powers under Article 324 of the Constitution of India, in supersession of its earlier order dated 28th June 2002, issued revised directions to all concerned. In Para 6 of the Petition, it is stated that as per the directives issued by the Election Commission on 27th March 2007, a candidate who is contesting election to the State Legislature is under an obligation to file two affidavits giving details viz. (i) whether a candidate is convicted/acquitted/discharged of any criminal offence in the past, if any, : 9 : whether he is punished with imprisonment or fine; (ii) prior to six months of filing of nomination whether the candidate is accused in any pending case of any offence punishable with imprisonment for two years or more or in which charge is framed or cognisance is taken by the Court of Law, if so, the details thereof; (iii) the assets (immovable, movable, bank balances etc.) of a candidate and of his/her spouse and that of dependants; (iv) liabilities, if any, particularly, whether there are any over dues of any public financial institution or Government dues; and (v) the educational qualification of the candidate. . The Petitioner further asserts that if a : 10 : candidate furnishes any wrong or incomplete information or suppresses any material information in or from the said affidavit than the nomination form of the said candidate is liable to be rejected, if the said defect is of a substantial character, apart from inviting penal consequences under the Indian Penal Code for furnishing wrong information to a public servant or suppression of material facts before him. 6. In Paragraphs 7 and 8, the Petitioner asserts that the Respondent chose to suppress important and material information while filing affidavits along with his nomination form and has failed to comply with the mandatory provisions of the Law, inviting appropriate consequences including of rejection of his nomination paper. The Petitioner asserts that furnishing wrong or incomplete information or suppression of any material information in the affidavit renders the affidavit false, frivolous and no affidavit in the eye of Law. 7. In Paragraph 9, the Petitioner has : 11 : referred to the contrary statements made by the Respondent in two affidavits filed by him before the Returning Officer in relation to the pending criminal case being Criminal Case No.12 of 1997. 8. In Paragraph 10, the Petitioner asserts that the Respondent made false statement in the affidavit that he had no Government dues, which he was liable to pay. In fact, on the date of filing of the nomination papers, the Respondent had outstanding bills to be paid to Maharashtra State Electricity Board, which is a Government Undertaking in respect of two electricity meter connection in his name in the amount of Rs.79,200/- (Rupees Seventy-Nine Thousand Two Hundred) and Rs.66,250/- (Rupees Sixty-six Thousand Two Hundred Fifty) respectively. To substantiate this position, the Petitioner relies on the copy of the letter issued by the Executive Engineer of M.S.E.B. dated 4th October 2004 confirming the outstanding bills payable by the Respondent. 9. In Paragraph 11, the Petitioner asserts that in the affidavit filed by the Respondent along : 12 : with his nomination form, he has suppressed the immovable property belonging to the Respondent and his spouse namely his wife Mrs.Kamal Kisan Kathore. The Petitioner states that Bungalow No.866 at Badlapur in the limits of Kulgaon Badlapur Municipal Council stands in the name of Respondent’s wife Mrs.Kamal Kisan Kathore, which information has been suppressed by the Respondent. It is further asserted that the Respondent has also not disclosed the fact that a sum of Rs.3,465/- (Rupees Three Thousand Four Hundred Sixty-five) was due and payable by the Respondent’s wife to Kulgaon Badlapur Municipal Council by way of house property tax in relation to the said bungalow for the relevant period. 10. In Paragraph 12, the Petitioner asserts that the Respondent suppressed the material fact in the affidavit filed along with the nomination form that his wife had purchased immovable property situated in Village Bhilkhede, Taluka Jamner, District Jalgaon along with Smt.Vimal Gokul Patil in the year 2000 for a sum of Rs.4,42,000/- (Rupees Four Lakhs Forty-two Thousand) by a Sale Deed, : 13 : which was duly registered with the Office of the Sub-Registrar, Jamner, District Jalgaon. The said immovable property is agricultural land admeasuring about 15 acres which is purchased from one Jagannath Trimbak Kulkarni, residing at post Nachankhede, Taluka Jamner, District Jalgaon. It is further stated in the same paragraph that the Respondent’s wife along with said Smt.Vimal Gokul Patil also purchased another immovable property for a sum of Rs.70,000/- (Rupees Seventy Thousand) from one Jahangir Ahmed Patel admeasuring about 84 ares. The Petitioner has relied on the Sale Deeds which are annexed to the Election Petition as Exhibits ‘F’ and ‘F-2’. English translation of the said Sale Deeds is produced at Exhibits ‘F-1’ and ‘F-3’ to the Election Petition. The Petitioner then asserts that the said Smt.Vimal Gokul Patil is none else but wife of one Sr.Inspector of Police Shri Gokul Patil, who incidentally was arrested in Crime Register No.135 of 2002 registered at Bund Garden Police Station, Pune, popularly known as ‘Telgi Scam Case’, which offence is punishable under the provisions of the Indian Penal Code as well as the Maharashtra Control of Organised Crimes Act, 1999. : 14 : It is the case of the Petitioner that during the election of the Maharashtra Legislative Assembly held in the month of October 2004, Telgi Scam Case was one of the main issue during the election, as it was widely believed that many politicians were involved in the said Scam. The Petitioner asserts that the Respondent has no known source of income and even his wife is not employed or earning member in the family. According to the Petitioner, acquisition of such large property in the name of the Respondent’s wife jointly purchased in the name of wife of said Gokul Patil leads to believe that the consideration amount was financed by Gokul Patil, who is one of the accused in Telgi Scam Case out of the money generated from the said Scam. According to the Petitioner, this information, though crucial and material, was intentionally suppressed by the Respondent in his affidavit filed along with the nomination. According to the Petitioner, if these facts were made known to the voters/electorals, it would have materially affected the election and the voters/electorals would have definitely rejected the candidature of the Respondent. It is also asserted that due to : 15 : suppression of these facts, election of the Respondent has been materially affected. 11. In Paragraph 13 of the Petition, the Petitioner has referred to the fact that motor vehicle No.MH-05-AC-555 of Mahendra Scorpio make is owned in the name of Respondent’s wife, which fact has been suppressed in the affidavit of the Respondent filed along with the nomination form. The Petitioner states that if the Respondent were to disclose this information, the link of the Respondent’s wife with the accused in Telgi Scam Case would have been exposed, for which reason, all assets of the Respondent’s wife have been suppressed in the mandatory affidavit. The Petitioner has relied on the letter issued by the Regional Transport Office, Kalyan dated 4th October 2004 (Exhibit ‘G’ to the Election Petition) to substantiate the fact that the above numbered vehicle was shown in the Official record in the name of Respondent’s wife. 12. In Paragraph 14 of the Petition, the Petitioner asserts that the Respondent has : 16 : illegally, malafide suppressed the property belonging to him in the affidavit filed by him along with the nomination form. In that, the Respondent has suppressed that he has right, title and interest in the land admeasuring 1330 sq.meters in Survey No.48, Hissa No.9, Plot No.2 and in the land admeasuring about 1292 square meters bearing Survey No.48, Hissa No.9, Plot No.3 at Mauje Kulgaon, Taluka Ambernath, District Thane. The Petitioner asserts that the Respondent has executed an Agreement of Development and Sale in relation to the said property, which was purchased in partnership along with two other partners, of which the Respondent is one of the partner. The name of the partnership is also disclosed by the Petitioner as M/s.Padmavati Developers, having their Office at Shraddha Sagar Building, Near Railway Gate, Kulgaon (East), Taluka Ambernath, District Thane. The Petitioner then asserts that the Respondent is the sitting President of Zilla Parishad, Thane and he has no known source of income and immovable properties whose market value is in lakhs, are purchased by Respondent either in his name or in the name of his wife. That if all these properties : 17 : are clubbed together, the market value of the said immovable property may run in crores of rupees; and as the Respondent would be unable to explain his source of income at the time of purchase of the respective properties in his name, has procured the same in the name of his wife. It is for this reason, those properties have not been declared. It is a case of suppression of material information, for which reason, the affidavit filed on behalf of the Respondent along with the nomination form deserve to be rejected. 13. In Paragraph 15, Petitioner has asserted that in the affidavit filed by the Respondent along with the nomination papers, it has been declared by the Respondent that he had taken a loan of Rs.5,50,000/- (Rupees Five Lakhs Fifty Thousand) from Thane District Central Cooperative Bank. The Petitioner states that the said information furnished by the Respondent in his affidavit is false on the face of the record. Inasmuch as the Respondent is the ex-officio director of the Thane District Central Cooperative Bank, being the Chairman of Zilla Parishad, Thane, was not eligible : 18 : to get loan from that Bank being Director of the Bank. The Petitioner has relied on letter issued by the Bank which is annexed as Exhibit ‘H’ to the Election Petition to substantiate his claim that the Respondent had never taken loan from the said Bank. 14. In Paragraphs 16 to 18, in substance, the Petitioner has asserted that the Respondent has suppressed material facts and information in the affidavits filed along with the nomination form. Such information was suppressed only to mislead the voters of Ambernath Legislative Assembly Constituency. It is the case of the Petitioner that if the Respondent were to disclose purchase and ownership of such huge property, in his name or in the name of his wife would have lead to an inference that such property must have been purchased from the funds generated from some unknown source or from tainted source. The Petitioner asserts that if these facts were disclosed, the voters of Ambernath Legislative Assembly Constituency would have definitely rejected the Respondent’s candidature in the : 19 : Assembly Election held on 13th October 2004. The Petitioner asserts that suppression of such material information affected the right of information of the voters to know the candidate’s background which was their fundamental right. According to the Petitioner, therefore, it is a case of improper acceptance of nomination form of the Respondent and his election on the basis of such defective nomination form was liable to be declared null and void. 15. In Paragraph 19, the Petitioner has stated that immediately after the date of scrutiny i.e. 23rd September 2004, the Petitioner came to know that Respondent had given false information and suppressed material information in the mandatory affidavits filed by the Respondent along with nomination papers. Accordingly, the Petitioner addressed a letter to the Returning Officer pointing out the falsity and suppression of material information in the affidavits of the Respondent and to reject the nomination form of the Respondent. Naturally, as the scrutiny was already over and nomination form of the Respondent was : 20 : already accepted by the Returning Officer, nothing could be done on the basis of the representation made by the Petitioner. For that reason, the Petitioner has now approached this Court for reliefs as referred to earlier. 16. The Respondent has filed his written statement which was verified on 11th April 2005. In short, the Respondent has denied the claim of the Petitioner. I shall elaborate about the contents of the written statement while dealing with the relevant issue. Suffice it to observe that on the basis of the pleadings, issues were settled and framed under order dated 20th April 2005 as under : "(1) Does the Respondent proves that the Election Petition is barred by the Law of Limitation? (2) Does the Respondent proves that the Election Petition is not maintainable for non-joinder of parties? (3) Does the Respondent proves that the Petition as well as documents annexed thereto have not been properly verified and therefore, the Petition is not maintainable in Law? : 21 : (4) Does the Petitioner proves that the directions and orders issued by the Election Commissioner of India dated 27th March 2003 is mandatory and non-compliance thereof would render the nomination form submitted by the candidate invalid? (5) Does the Petitioner proves that Respondent has not filed two affidavits along with the Nomination Form as per the directions and orders issued by the Election Commissioner of India dated 27th March 2003? If so, what effect? (6) Does the Petitioner proves that in the affidavits to be filed along with the nomination papers, the Respondent has given wrong or incomplete information, or has suppressed material information in or from the said affidavits? If so, what effect? (7) Does the Petitioner proves that the Respondent’s Nomination Form is improperly accepted by the Returning Officer? (8) Whether on account of improper acceptance of the nomination paper, the Election result is materially affected? (9) What order?" 17. After issues were framed, affidavit of evidence in lieu of examination-in-chief was filed along with the documents. It was agreed between the parties that the witnesses be examined on commission. Accordingly, by order dated August 16, : 22 : 2005, Court Commissioner was appointed to record evidence of the concerned witness of the Petitioner. The recording of evidence of the Petitioner’s witness accordingly proceeded before the Court Commissioner. Even the evidence of other witnesses summoned at the instance of the Petitioner came to be recorded before the Commissioner. From the report submitted by the Commissioner, it is seen that several objections were raised by both sides during recording of evidence. However, none of those objections have been pursued during the hearing of the present Petition. In other words, neither side has invited decision of the Court in relation to the objections recorded by the Court Commissioner during the recording of evidence (except to one document to which reference is made only in the written submissions). On 1st of March 2007, when the matter was taken on Board, it was found that the Commission work was not progressing speedily as was expected. As the Petitioner’s evidence was already closed by then, it was decided that the evidence of Respondent and his witnesses will be recorded before the Court. Accordingly, the evidence of : 23 : Respondent and his witnesses was recorded in Court and was concluded on 14th March 2007. As the recording of evidence was closed, the matter could have proceeded for final arguments, however, it was noticed that handwriting expert’s opinion, in relation to certain documents was invited in terms of the order passed earlier, was still awaited. In the circumstances, direction was issued to expedite the said report. The report was eventually received in a sealed cover which was opened in Court on 23rd March 2007. The same was taken on record to be read in evidence in terms of provisions of Order XXVI read with Rule 10A of the Code of Civil Procedure, 1908. Thereafter, Counsel for the Petitioner made statement before the Court that the Petitioner was not desirous of taking out any formal application for summoning the expert, for recording of his evidence as his witness. As the recording of evidence was complete, the matter was ordered to be placed for oral arguments. 18. When the matter was listed for arguments on 3rd April 2007, Counsel for the Petitioner had taken out application for the relief that Issue