1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. LETTERS PETANT APPEAL No. 69 OF 2010 IN WRIT PETITION No. 5805 OF 2009 Lakshmipati S/o Bapurao Donepelliwar, Age 28 years, Occu. Business & Member of Municipal Council, Kinwat, Tq. Kinwat, Dist. Nanded. .. APPELLANT. VERSUS 1) The Returning Officer / Sub Divisional Officer, Kinwat for the Election of Municipal Council, Kinwat held in November-Dec. 2007. 2) Arun S/o Laxmanrao Alne Age 35 years, Occu. Agriculture R/o Kinwat, Tq. Kinwat, Dist. Nanded. 3) Ashatai Udhavrao Kadam, Age 32 years, Occu. Agriculture R/o Kinwat, Tq. Kinwat, Dist. Nanded. 4) Ashok S/o Gomaji Patil, Age 36 years, Occu. Agriculture R/o Kinwat, Tq. Kinwat, Dist. Nanded 5) Suresh Dattatraya Mhaske, Age 32 years, Occu. Agriculture R/o Kinwat, Tq. Kinwat, Dist. Nanded. 2 6) Maroti S/o Kanba Sankalwad, Age 35 years, Occu. Agriculture r/o Kinwat, Tq. Kinwat, Dist. Nanded. .. RESPONDENTS. ... Shri V.D. Salunke, Advocate for petitioner. Shri S.T. Shelke, Advocate for respondent No. 1. Shri R.S. Deshmukh, Advocate for respondent No. 2. .... CORAM :- P.V. HARDAS AND S.V. GANGAPURWALA, JJ. ORDER RESERVED ON 29th April,2010. ORDER PRONOUNCED ON 7th MAY, 2010. ORAL ORDER: (Per S.V. GANGAPURWALA,J.) 1. Heard Shri V.D. Salunke, learned counsel for petitioner, Shri S.T. Shelke, learned counsel for respondent No. 1, and Shri R.S. Deshmukh, the learned counsel for respondent No. 2. 2. The appellant takes exception to the order dated 09/03/2010 passed by the learned Single Judge of this Court in Writ Petition No. 5805 of 2009, whereby the learned Single Judge had set aside the judgment and order passed by 3 the Adhoc District Judge-II, Nanded in election petition No. 4 of 2007. 3. The factual matrix in nut shell are set out below :- 4. The Appellant and respondent Nos. 2 to 6 have contested the election of the Municipal Council, Kinwat, Dist. Nanded from ward No. 17. The respondent No. 2 is declared elected from ward No. 17 on 27/11/2007. The present appellant challenged the election of the elected candidate i.e. respondent No. 2, by filing election petition Under Section 21 of the Maharashtra Municipals Councils, Nagar Panchayats and Industrial Township Act, 1965 (for short “ the Act, 1965”). The grounds of challenge set forth by the present Appellant in the election petition, so also as argued by learned counsel for the Appellant, Shri V.D. Salunke can be culled out as under :- 1] The nomination filed by the respondent No. 2 was not complete in accordance with 4 law and not in accordance with the guide lines issued by the State Election Commissioner dated 03/07/2002. 2] The Affidavits filed along with nomination form were defective in much as, the said affidavit did not bear adhesive Stamps (notaries stamps), and as such the said affidavits are no affidavits in the eyes of law. 3] The respondent No. 2 was disqualified to contest the election because he was removed from the post of Municipal Councilor by order dated 11/10/2006 Under Section 44(1) (e) of the said Act, 1965. 5. The learned Adhoc District Judge-II, Nanded by its order dated 01/08/2009 was pleased to allow the said election petition. The election of respondent No. 2 from ward No. 17 of Kinwat Municipal Council, Kinwat, Dist. Nanded was cancelled and it was further declared that, present appellant has been elected from ward No. 17, Samatanagar of Municipal Council, Kinwat. The learned Adhoc District Judge Judge-II, Nanded in its judgment held that, the nomination form submitted by the respondent No. 2 was not legal and proper, so also held that, the respondent No. 5 2 was not competent to contest the election. 6. The present respondent No. 2 challenged the said judgment delivered by the Adhoc District Judge-II, Nanded in election petition No. 4 of 2007 by filing Writ Petition bearing No. 5805 of 2009 before this Court. The learned Single Judge, by its judgment and order dated 09/03/2010 was pleased to allow the said Writ Petition, by setting aside the judgment and order passed by the Adhoc District Judge-II, Nanded. The Learned Single Judge of this Court held that, the present respondent No. 2 was not disqualified from contesting the election, and further held that, the nomination form was not in-complete, and all the details furnished by the present respondent No. 2, so also absence of adhesive stamps on the affidavit did not render the same defective so as to set aside election of Respondent No. 2. 7. Shri V.D. Salunke, the learned counsel for the appellant strenuously contended that, the petitioner was disqualified from 6 contesting the said election, in view of the fact that, he was removed as a member of Municipal Council, Kinwat by Collector, Nanded vide order dated 11/10/2006 Under Section 44(1) (e) of the said Act, 1965, he was disqualified for remaining terms of his office. The dates will have material bearing to decide the said aspect of the matter. The Collector, by its order dated 11/10/2006 was pleased to disqualify the petitioner as a member of the Municipal Council, Kinwat. The competent authority vide its order dated 8/11/2006 had stayed the said order of the Collector, disqualifying the present respondent No. 2. Thereafter, the Hon’ble Chief Minister by order dated 21-05-2008 had set aside the said order of the Collector, disqualifying the respondent No. 2. The nomination form was submitted on 02/11/2007, as such on the date of submission of the nomination form, order of disqualification was stayed by the competent authority. In view of the said fact, no impediment existed for the respondent No. 2 in submitting the nomination 7 form and it could not have been said that the respondent No. 2 stood disqualified. The learned counsel Shri V.D. Salunke for the Appellant relied on the judgment in the case of “Sayali Sanjay Malvankar V/s. Chief Officer, Vengurla Municipal council & others, reported in 2004(5) Bom.C.R.777” and tried to submit that Under Section 44(1) (e), the respondent No. 2 was disqualified for the unauthorised construction and office of the councilor would fall vacant. Shri V.D. Salunke, the learned counsel for the appellant also relied on the judgment of Full Bench of this Court, in the case of “Vidarbha Nagarpalika Parishad & others V/s. Governor of the State of Maharashtra & others, reported in 1985(2) Bom.C.R. 724”. The said judgment may not be of much relevance for the reason that the disqualification ordered by the Collector was stayed by the competent authority much prior to the submission of the nomination form, so also the order of disqualification was set aside by the Hon’ble Chief Minister. According to the learned counsel for Respondent No. 2, Shri Deshmukh, the disqualification was stayed at the 8 relevant time, though the copy of the same was not produced, when the matter was pending before the District Court, Nanded, nonetheless, the same is not disputed by the appellant. He further submitted that, in such circumstances, when the said order of disqualification was stayed and subsequently set aside, it would relate back to the date of the order of the disqualification and it would mean that, there would no disqualification. We need not dilate on the said aspect, in view of the fact that, undisputedly on the date of submission of the nomination form, the order of disqualification has been stayed by the competent authority and eventually set aside. As such, it cannot be said that the respondent No. 2 was disqualified from contesting the election. 8. The next contention raised by the learned counsel for the appellant was that, the nomination form was in-complete in as much as the blank spaces in the annexures were not filled in. The Learned Single Judge has in detail dealt with the same. The relevant portion of the annexure was typed on the non-judicial stamp paper as such 9 it was not required to be repeated, it cannot be said that nomination form was in-complete. In fact, the said information which was kept blank in the form was already typed on non judicial stamp paper and it was not required to be repeated, as such it cannot be said that the form was in complete. 9. The learned counsel for the appellant laid much emphasis on the point that, it is mandatory to submit five affidavits along with nomination form as contemplated, and the affidavit has to be complete in all respect. According to the learned counsel, the said affidavits were sworn before a notary, and if affidavit is sworn before a notary adhesive stamps are required to be affixed on said affidavit. In view of such deficiency said affidavits cannot be read and they are no affidavits in the eyes of law and it will be said that the nomination form was not supported with affidavits and not complete. Undisputedly, when the respondent No.2 herein submitted the nomination form, the Appellant nor any other 10 person had objected to the acceptance of the said nomination form. According to the learned counsel for the appellant Section 11(b) of the Bombay Stamp Act, 1958 lays down “Section 11. Use of adhesive stamps The following instruments may be stamped with adhesive stamps namely :- (a) [ * * * * * ] (b) Instruments mentioned at [articles 1.] 5(a) to (g), 17,29,37[41), 42 43 59(a) and 62 in Schedule I.]“ 10. The learned counsel for the Appellant further submitted that, Article 42 of the Bombay Stamp Act, requires a notarised instrument stamp duty and as per Section 11(6) same would require adhesive stamp, and for the said purpose the learned counsel for the appellant Shri V.D. Salunke has relied on the judgment of Allahabad High Court (Lucknow Bench) in the case of “Kashi Prasad Saksena V/s. State Government of U.P. Lucknow, reported in AIR 1969 Allahabad 195”. The learned single Judge therein had held that 11 certificate or endorsement given or made by a Notary Public on the affidavits is required to be stamped under Article 42 and unless that fact is certified or endorsed on the affidavit the affidavit remains a waste paper. By referring to the said judgment learned counsel contend that, affidavits in this case is sans adhesive stamp and as such a waste paper. 11. The learned counsel for the appellant also relied on the judgment in the case of “ Ragu Mahesh alias Regu Maheshwar Rao V/s. Rajendra Pratap Bhanj Dev & another, reported in 2004(5) ALL MR(S.C.) 322” wherein it is held that defective verification though is curable one but the party not curing the defect, though defects were pointed out such causal approach cannot be countenanced or glossed over. According to him, till today the respondent No.2 has not cured the said defect though it has been pointed out to him and as such even assuming this defect of not affixing adhesive stamp is a curable defect, still same has not been cured and such a casual approach cannot be countenanced by law, and as 12 such on this count the learned Judge ought to have dismissed the petition. The learned counsel further relied on the judgment delivered by the learned Single Judge of this Court in the case of “Conwood Agencies Private Ltd., V/s. Namdev P. Panchal” to substantiate that the question about the non registration, inadequacy of stamp under the Bombay Stamp Act, should be decided at the out set, and further by relying on the said judgment tried to canvass that document was in sufficiently stamped cannot be read in evidence. 12. The moot question is that, assuming that the said affidavit required adhesive stamp and the same is not affixed to the affidavit then whether the affidavit would be rendered redundant and nugatory. The Apex Court in a case of “Hindustan steel Ltd., V/s. M/s. Dilip Construction Co. Reported in AIR 1969 Supreme Court 1238 (V 56 C 224)” held that, the provisions do not create any bar against an instrument not duly stamped being acted upon and further held that, provisions of the Stamp Act are not meant to arm a litigant with 13 technicalities to defeat the claim of the opponent. The Stamp Act, is a fiscal measure enacted to secure revenue for the State on certain class of instrument. 13. The Apex Court in the case of “ Javer Chand and others V/s. Pukhraj Surana, reported in AIR 1961 Supreme Court 1655 (V 48 C 312) “ by referring to Section 36 of the Stamp Act, 1899 which is pari-materia with Section 35 of the Bombay Stamp Act, 1958 held that :- “ Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument, has not been duly stamped.” That, Section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceedings on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the class of cases contemplated by S. 61, which is not material to the present controversy. Section 36 does not admit of other 14 exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court rightly or wrongly decides to admit the document in evidence, so far as the parties are concerned, the matter is closed.” In the present case also the affidavits were accepted by the authority at the time of acceptance of nomination form. The appellant nor any other person objected the same on any count much less on the ground of non affixing of stamps. In such circumstances, the affidavits were accepted by the authority concerned, and acted upon. Now it would not be open to the appellant to contend for the 1st time in election petition that as the affidavits are not properly stamped, they ought not to have been acted upon. Moreover, insufficiently stamped documents is not invalid or void. In such circumstances, no fault can be found in the judgment of the learned Single Judge who has upon thread-bare analysis of the relevant factual 15 matrix and legal provisions dealt with the matter and arrived at correct conclusion. 14. In the result, Letters Patent Appeal being devoid of any merits is dismissed. However, there shall be no order as to costs. [S.V. GANGAPURWALA, J ] [ P.V. HARDAS, J ] At this Stage, learned counsel for the appellant prays for the extension of the interim relief which is already granted, in order to take up the appropriate proceedings to the Supreme Court. Interim Relief already granted is extented for a period of four weeks. [S.V. GANGAPURWALA, J ] [ P.V. HARDAS, J ] SDM* LPA60.10 (J)