dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE SIDE CIVIL JURISDICTION SIDE CIVIL JURISDICTION SIDE CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO.2195 OF 2009 PETITION NO.2195 OF 2009 PETITION NO.2195 OF 2009 Sau.Savita Bajrang Kadam, Ag: 22 years, occupation:household, R/o.Igatpuri, Tal.Igatpuri, Dist: Nasik. Petitioner Vs. 1. Manisha Ramdas More, 23 yrs., occupation household and social work, R/o.Vis bungalow Road, Igatpuri, Tal.Igatpuri,Dist.Nasik. 2. Sau.Malatibai Gautam Garud, Age: Adult,occupation:Household, R/o.Igatpuri, Tal.Igatpuri. 3. Igatpuri Nagar Parishad, Igatpuri,Tal.Igatpuri,Dist.Nasik. 4. Election Commissioner, Igatpuri,Tal.Igatpuri, 5. State of Maharashtra 6. Sou.Yashodabai Murlidhar Rupawate, Age: Adult,Occu: Household work, R/o.at: At & Post:Igatpuri, Taluka: Igatpuri, District: Nashik. Respondents (Respondent No.1- Petitioner, Respondent Nos. 2 to 4-orig. Opponent Nos. 2 to 4). Mr.Vinod Jadhav for the petitioner. Mr.S.M.Oak with Mr.Tushar Sonawane for respondent no.1. None for respondent no.2. Mr.S.S.Pakale for respondent no.3. Mr.A.I.Patel, AGP for State. None for respondent 6. ALONG ALONG ALONG WITH WITH WITH WRIT WRIT WRIT PETITION NO.2254 OF 2009 PETITION NO.2254 OF 2009 PETITION NO.2254 OF 2009 1. Tarabai Bandu Kadam, ( 2 ) Age 27 Years, Occ.Household, Residing at House No.101, Rajwada Gavatha, June Gavatha Pimpri Road, Igatpuri,Tal. Igatpuri, District Nashik. 2. Alka Suresh Kadam, Age 32 Years,Occ.Household, Residing at House No.101-B, Rajwada Gavatha, Juna Gavatha Pimpri Road, Igatpuri, Tal. Igatpuri, District Nashik. ... Petitioners vs. 1. Manisha Ramdas More, 24 yrs., occupation household and social work, R/o.Vis bungalow Road, Igatpuri, Tal.Igatpuri,Dist.Nasik. 2. Savita Bajrang Kadam, Age 21 years, Occ.Household, Residing at and Post Igatpuri, Gavthan, Taluka Igatpuri, District Nashik. 3. Sou.Yashodabai Murlidhar Rupavate, Age Adult, Occ.Household, Residing at and Post Igatpuri, Taluka Igatpuri, District Nashik. 4. Sou.Maltibai Gautam Garud, Age Adult, Occ.Household, Residing at and Post Igatpuri, Taluka Igatpuri, District Nashik. 5. Igatpuri Municipal Council, Igatpuri, District Nashik. 6. Election Returning Officer, Igatpuri, Taluka Igatpuri, District Nashik. 7. State of Maharashtra ..Respondents Mr.Vijay Patil for the petitioner. Mr.S.M.Oak with Mr.Tushar Sonawane for respondent no.1. Mr.S.S.Pakale for respondent no.5. ( 3 ) Mr.A.I.Patel, AGP for State. CORAM CORAM CORAM : : : ANOOP V.MOHTA,J ANOOP V.MOHTA,J ANOOP V.MOHTA,J. DATED DATED DATED : 6th March, 2009. : 6th March, 2009. : 6th March, 2009. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: By consent, heard finally. 2. In Writ Petition No.2195/2009, the petitioner has challenged the impugned judgment/order dated 31.01.2009 passed by the District Judge, Nasik, whereby, an Election Petition No.9/2007 filed by respondent no.1(original petitioner) has been allowed and the election of the petitioner (original opponent no.1) from Ward No.19 of Igatpuri Municipal Council (I.M.Council) in the year 2007, is declared as null and void and accordingly set aside. By the same order, respondent no.1(original petitioner) has been declared to be elected in the place of petitioner from Ward No.19 of I.M. Council. Therefore, this petition. 3. In Writ Petition No.2254/2009, two voters being resident of Ward No.19 of I.M.Council challenged the direction No.(3) of the impugned order only and prayed further to hold fresh election of the Ward of I. M. Council. ( 4 ) 4. Both these writ petitions are disposed of by this common judgment as the basic facts & issues are common. 5. In the month of December, 2007, an election was declared for member councillor of ten municipal councils for reserved category. The original petitioner and respondents 1 to 3 contested from Ward No.19 which was reserved for female (Scheduled Caste) candidate. The elections were held on 25.11.2007. The results were declared in the evening and the petitioner/opponent no.1 was declared elected. 6. The present Election Petition No.9/2007 was filed by respondent no.1 mainly on the ground that the petitioner was disqualified from contesting the election being less than 21 years of age on the date of filing of nomination form. Though denied by written statement, but unable to support any material document to substantiate her age by the petitioner. The original opponents 4 and 5 filed reply/written statement. Opponent No.3 proceeded exparte. Opponent No.2 filed pursis and supported the objection raised in the petition. 7. Respondent no.1 filed her deposition on affidavit ( 5 ) and examined one Vasant Shankar Bawa, Bajrang Rakhmaji Thorat and Mahendra Subhashchandra Nabheda. The petitioner (opponent no.1) did not examine any witness. 8. The learned Judge has framed the following issues: Issue Issue Issue Findings Findings Findings 1. Does petitioner prove that the opponent no.1 was In the affirmative disqualified for contesting election in Ward No.19 of Igatpuri Nagar Parishad General Election, 2007? 2. Is petitioner entitled to the In affirmative. relief as prayed for ? 3. What order? As per final order 9. After considering the material including evidence and documents filed on record, the learned Judge rightly arrived at conclusion that the original petitioner has proved that the petitioner (opponent no.1) was disqualified for contesting election in Ward No.19 of Igatpuri Nagar Parishad General Election 2007 and accordingly allowed the Election Petition. The relevant portion of the reasoning as correctly recorded is as under: "9. It needs to be noted here that the school leaving certificate at Exh.42 is submitted by the opponent no.1 herself to caste scrutiny ( 6 ) committee at the time of verification of caste certificate. The said document is obtained by the present applicant by applying to the caste scrutiny committee under the Right to Information Act. From the said certificate here is no doubt that the maiden name of opponent no.1 was Anita Prabhakar Pawar. The said evidence is corroborated by witness no.4 for the petitioner Narendra Nabeda who has admitted that the certified copy of marriage card shown to him was printed in his printing press at Exh.48. The said marriage card is also a marriage card submitted by the opponent no.1 to the caste scrutiny committee and those are the certified copies placed on record, issued by the caste scrutiny committee on application under Right to Information Act by the applicant. From these documents it is clear that the date of birth of the opponent is 6.7.87 and last date of submitting nomination form was 2.11.07. Thus, on the last day of submitting nomination form the opponent no.1 had not completed the age of 21 years. . In view of the provision under Section 15 of the Maharashtra Municipal Council Nagarpanchayat and Industrial Township Act, 1965; person must possess required qualification i.e.1) he shall not be less than 21 years of age; 2) his name must be included in the voter’s list; and 3) he is not disqualified for being elected as a corporator under the said Act, or any other laws. In view of this, the election of opponent no.1 is required to be declared as null and void. The only defence raised by the opponent no.1 that her name shown in voter’s list and her age as 21 years and said final voter’s list was published and no objection is taken to the proposed voter’s list. In view of that, it has become final and conclusive and that cannot be challenged at any stage, in view of section 15(2). " 10. In view of the above, as per Section 15 of the Maharashtra Municipal Council Nagarpanchayats and Industrial Townships Act, 1965 (for short, "Maharashtra Municipal Council Act"), a person must ( 7 ) not be less than 21 years of age apart from other qualifications. There is ample material on record to show that she had not completed age of 21 years as required, was disqualified to be elected as a member. There is no substance in the defence raised by the petitioner (opponent no.1) that her name and her age as 21 years in the voters list. The said final voters list was published and as no objection was taken to the proposed voters list, the said age as recorded, therefore, need to be considered as final and conclusive and, therefore, cannot be challenged now in view of Section 15(2) of the said Maharashtra Municipal Council Act. 11. The inclusion of the name in the voters list cannot become the conclusive proof of the said person’s age. When the mandate of Act and requirement is that the person should be above 21 years of age, more substantial documents are required to support the same. The name of such candidate should be in the voters list but at the same stroke, the submission that the age so mentioned and has remained unchallenged be treated as final and conclusive is without any substance specially in view of the mandate of Section 15(2) of the Maharashtra Municipal Council Act itself. There is procedure prescribed to submit ( 8 ) the names and/or to add the names in the voters list. Under what circumstances her age was recorded as 21 years is different aspect which appropriate Authority may take note of. But when someone challenges the age and basically of a person who wants to elect/contest any such election, it is necessary that at the time of such nomination of the paper itself, the concerned Officer ought to have and should take note of documentary evidence to confirm the age and caste of the respective candidates. The birth certificate, school leaving certificate, S.S.C.Certificate and all such other documents which are recognised and have evidentiary value in respect of age should be insisted and only after verification and confirmation, the concerned Officer should accept or reject the nomination paper. The requirement of affidavit and declaration need to be checked then and there only though in summary manner, but to serve the purpose and object of the scrutiny of the nomination paper/form. 12. In the present case, therefore, as the petitioner (opponent no.1) did not even enter into witness box or examined or supported any document in her defence, the learned Judge after considering the certified copy of school leaving certificate (Exh.42) and, therefore, rightly comes to the conclusion that date of birth of ( 9 ) petitioner is 6.7.1987 and she had not completed the age of 21 years on the date of submission & scrutiny of nomination paper i.e. 2.11.2007. (See also Amritlal Ambalal v.Himathbhai, AIR 1968 S.C.1455). 13. In view of this, as the petitioner failed to discharge the burden to prove her age as required and as objected by the original petitioner, the order of declaring her election; to be null and void need no interference. The order is within the frame work of law and the record. The reliance on the case of Birad Birad Birad Mal Mal Mal Shinghavi vs.Anand Purohit, AIR 1988 S.C.1796, Shinghavi vs.Anand Purohit, AIR 1988 S.C.1796, Shinghavi vs.Anand Purohit, AIR 1988 S.C.1796, by the petitioner was of no assistance in view of above facts and circumstances of the case. 14. Now with regard to the direction declaring respondent no.1 to be elected in place of the petitioner from Ward No.19 of Igatpuri Municipal Council, the learned counsel for the petitioner has relied on the case of Anandrao Tohluji Bagade vs. Anandrao Tohluji Bagade vs. Anandrao Tohluji Bagade vs. Namdeorao Namdeorao Namdeorao Lalwanji Sontakkey & ors., 1978 Mh.L.J. 371 Lalwanji Sontakkey & ors., 1978 Mh.L.J. 371 Lalwanji Sontakkey & ors., 1978 Mh.L.J. 371 (D.B.) (D.B.) (D.B.) and and and the case of Kadam Rupsing Bhivji vs. Kadam Rupsing Bhivji vs. Kadam Rupsing Bhivji vs. Returning Returning Returning Officer, Municipal Council, Ahmednagar & l Council, Ahmednagar & l Council, Ahmednagar & ors., ors., ors., 1998(4) Bom.C.R.786 1998(4) Bom.C.R.786 1998(4) Bom.C.R.786 and contended that such declaration is impermissible, in view of Sections 16 and 21(10) of the Maharashtra Municipal Council Act. ( 10 ) Respondent No.1, therefore, merely because she secured second highest votes that just cannot be the reason to declare her elected, because the votes of disqualified candidate cannot be treated as thrown away votes. 15. The learned counsel for respondent no.1 who is declared as elected candidate has relied on Indravati Indravati Indravati Rajan Rajan Rajan Yadav v. Shantidevi K. Yadav & ors., 2006(1) Yadav v. Shantidevi K. Yadav & ors., 2006(1) Yadav v. Shantidevi K. Yadav & ors., 2006(1) Mh.L.J. Mh.L.J. Mh.L.J. 282 and Geeta Kisan Gore v. State of 282 and Geeta Kisan Gore v. State of 282 and Geeta Kisan Gore v. State of Maharashtra Maharashtra Maharashtra & & & ors., 2003(4) Mh.L.J. 287 ors., 2003(4) Mh.L.J. 287 ors., 2003(4) Mh.L.J. 287 and contended that the learned Judge has rightly declared elected next candidate who has secured highest votes. Such order is not contrary to the said provisions of the Act. On the contrary, Section 21(10) of the Maharashtra Municipal Council Act permits to pass such orders. 16. Section 21(10) of Maharashtra Municipal Council Act is reproduced as under: 21. 21. 21. Disputes in respect of election, Disputes in respect of election, Disputes in respect of election, nomination nomination nomination of Councillors..... of Councillors..... of Councillors..... (10) If the petitioner has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Judge is satisfied that - (a) the petitioner or such other candidate received sufficient number of valid votes to have been elected; or ( 11 ) (b) but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a sufficient number of valid votes to have been elected; the Judge may, after declaring the election of the returned candidate void, declare the petitioner or such other candidate to have been duly elected: ..." 17. It is very clear that the Authorities cited by the learned counsel appearing for respondent 1 are based upon Mumbai Municipal Corporation Act i.e. Sections 9, 33 and 34, wherein the Act itself empowers the concerned Authority to declare "the candidate in whose favour the next highest number of valid votes is recorded ........., shall be deemed to have been elected.". The Act, if empowers the concerned Authority in clear terms then the Authority/Judge has no option but to pass such order, immediately after declaring elected candidate election null and void or disqualified for the reasons recorded to declare next candidate having highest number of valid votes to be elected in his/her place. 18. In the present case, admittedly, respondent no.1 got second highest votes i.e. 285 and whereas the petitioner got 316 votes. The other two candidates, respondent no.2 got 155 votes and respondent no.3 got 14 votes. There is also no dispute that all candidates ( 12 ) who contested the election were belong to same Scheduled Caste Female category, but the issue is whether there is such mandate under Section 21(10) of the Maharashtra Municipal Council Act to declare next candidate as elected which, after reading the said Section/provision, in my view, is missing. The said mandate is there in Mumbai Municipal Corporation Act. 19. The Division Bench of this Court in Anandrao Anandrao Anandrao Tohluji Tohluji Tohluji Bagade (supra) Bagade (supra) Bagade (supra), while considering the same provisions has observed as under: "20. .... However, it is contended by Shri Belekar that the votes secured by the petitioner Anandrao, who is found at the trial to be disqualified to contest the election, should be treated as ‘thrown away’ or ‘wasted’ votes and, therefore, should be wholly excluded from consideration while deciding the question as to whether election petitioner Namdeo has obtained majority of the valid votes. It is not possible for us to accept this contention. In this context reference could usefully be made to the observations of the Supreme Court in Vishwanatha Reddy v. Konappa Rudrappa, A.I.R. 1969 SC 604. While dealing with somewhat similar question in para 12 of the said judgment, the Supreme Court observed as under: . "When there are only two contesting candidates and one of them is under a statutory disqualification votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification. This is not to say that where there are more than two candidates in the field, for a single seat, and one alone is disqualified on proof of ( 13 ) disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate......." 21. In the present case also, no material is placed on record to indicate that the voters were aware of the disqualification of the petitioner Anandrao and have knowingly voted for the disqualified candidate. It is pertinent to note in this case that even the election petitioner Namdeo had not raised any objection during the course of scrutiny of the nomination papers in this behalf. This clearly indicates that the voters were not aware of the disqualification of the returned candidate." 21. 20. This is further followed in Kadam Rupsing Bhivji Kadam Rupsing Bhivji Kadam Rupsing Bhivji (supra) (supra) (supra). The relevant observation is as follows: "28. Reliance is placed in this regard on 1977 Mah.L.J.246 (Pyare Saheb Gulzar Chhotumiyas Sawazi v. Dashrath Wasudeo Daff and others). This was a case under City of Nagpur Corporation Act. The Division Bench has observed, "Even though the District Judge was right in setting aside the election of Pyare Saheb Gulzar Chootumiya from Ward No.31 of the City of Nagpur. However, we find that the declaration granted that the election petitioner i.e. Dashrath Wasudeo Daff stands duly elected from that ward was erroneous.". "Note (B) Right of candidates-More than two candidates contesting election--Court declaring election of returned candidate null and void on ground of disqualification-- Declaration in favour of candidate securing next highest number of votes does not automatically follow--It has to be shown that votes secured by disqualified candidate should be treated as thrown away." 29. In 1998(4) Bom.C.R. 578 : 1998(1) Mah.L.J.719, (Dnyaneshwar v. R.O.Amravati), ( 14 ) learned Single Judge of this Court has taken same view, "Held that when there are more candidates than two the question of notice to the voters of its disqualification becomes significant for the purpose, of granting declaration. In case of thrown away votes if there are more candidates than two, then in such circumstances evidence in respect of notice to the voters in respect of disqualification is significant. There was absolutely no evidence led by the candidate granted the declaration before the trial Court that the voters were given a notice of disqualification of the returned candidate...." 32. Thus in a case where there are more than two candidates, the candidate securing second highest number of votes cannot be declared elected and in such cases the only alternative left is to go through the election process again. There can be no short cut and therefore, in the present case the order declaring the second respondent elected cannot be sustained even otherwise." 21. Any election to local bodies is a creature of statute. Right to contest and right to hold office are all creatures of Statute. Therefore, the relevant provision of the local body including the Rules & circulars, if any, are required to be looked into while considering any challenge to the election of such local bodies. The decision given by the Courts based upon the concerned Act of the local bodies play very important role while deciding such election petitions. 22. Strikingly the Apex Court in Prakash Khandre v. Prakash Khandre v. Prakash Khandre v. Dr.Vijaya Dr.Vijaya Dr.Vijaya Kumar Khandre & ors., AIR 2002 S.C.2345 Kumar Khandre & ors., AIR 2002 S.C.2345 Kumar Khandre & ors., AIR 2002 S.C.2345 held as follows: ( 15 ) "14. However, in an election where elected candidate is declared to be disqualified to contest election and there are more than two candidates contesting election, there is no specific provision under the Act under which the person who has secured the next highest number of votes could be declared as elected. The Act is silent on this point. Further, it cannot be presumed that the votes secured by the disqualified elected candidates would have been wasted or would have been secured by the next candidate who has secured more votes. If disqualified candidate was not permitted to contest the election then how the votes would have voted in favour of the candidate who has secured more votes than other remaining candidates would be a question in the realm of speculation and unpredictability. In such a situation, declaring the election of the returned candidate on the ground of his initial disqualification to contest the election by itself would not entitle the election petitioner or any other candidate to be declared elected. 24. In view of the aforesaid settled legal position, in our view the impugned order passed by the High Court declaring the election petitioner as elected on the ground that the votes cast in favour of elected candidate (appellant) are thrown away was totally erroneous and cannot be justified. As held by the Constitution Bench in Konappa’s case that some general rule of election law prevailing in the United Kingdom that the votes cast in favour of a person who is found disqualified for election may be regarded as ‘thrown away’ only if the voters had noticed before the poll the disqualification of the candidate, has no application in our country and has only merit of antiquity. We would observe that the question of sending such notice to all voters appears to us alien to the Act and the Rules. But that question is not required to be dealt with in this matter. As stated earlier, in the present case for one seat, there were five candidates and it would be impossible to predict or guess in whose favour the voters would have voted if they were aware that ( 16 ) elected candidate was disqualified to contest election or if he was not permitted to contest the election by rejecting his nomination paper on the ground of disqualification to contest the election and what would have been voting pattern. Therefore, order passed by the High Court declaring the election petitioner Dr.Vijay Kumar Khandre as elected requires to be set aside." 23. In the present case, admittedly, there were four candidates who contested the election as they all belong same category. The contention that the judgments of Anand Rao T. Bagade and Kadam Rupsing Anand Rao T. Bagade and Kadam Rupsing Anand Rao T. Bagade and Kadam Rupsing Bhivji Bhivji Bhivji (supra) (supra) (supra) are not applicable as in those matters there were more than two candidates, but not belong to same category. Therefore, there was no question of declaring next candidate as elected is unacceptable also in view of the above observation by the Apex Court. 24. The important facet is that in a democratic set up of election one voter and one vote is the policy and formulae. The freedom is given to the voter to vote for the respective candidate of his choice. The voter may take note of individual candidate and/or the party who is supporting the said candidate and/or many other reasons, while voting in such election. There is also possibility that some candidates though submit their nomination forms withdraw such forms in favour of other ( 17 ) candidates. There are various such other contingencies/situation which just cannot be overlooked. In the present case, admittedly, all candidates belong to same category. Therefore, the submission that the next candidate who has procured second highest votes as declared elected and as it is permissible under the Act, cannot be said to be without authority or law which I am not accepting. It is difficult in such circumstances to throw away those votes in such fashion and elect next person securing the next highest number of votes. It practically amounts to taking decision in favour of such candidate on the footing that at the relevant time the voters could have voted