Voters must have adequate notice of the dis-qualifications of an election candidate: Bombay High Court

 on 18 05 2021 on 22 03 1 wp 4838 19 IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONCIVIL WRIT PETITION NO.4838 OF 2019Mr. Ashok Rajaram RaulAge 67 years Address 5B 11 Pereira Nagar Co Op.Hsg. Society Khopat Thane(W)... PetitionerVs. 1. Mr. Mandar Pramod VichareAge 41 years Address Flat No.601 Samarth Ganga Niwas GovindBachaji Road Charai Thanebeing Election Petition No.02 2017 before thelearned Civil Judge Senior Division at Thane challenging theelection of the petitioner on the ground that the petitioner wasdisqualified to contest the said election and on account of a materialirregularity in the election proceedings and the corrupt practice. Inshort according to the first respondent the petitionerfiled his nomination formfurnishing false misleading and incomplete information. WhileMamta Kale page on 18 05 2021 on 22 03 1 wp 4838 19elaborating the said ground it was contended that the petitionerhad disclosed in the nomination form that there is only one criminalcase pending against him while there were two other criminal casesin which the petitioner was facing trial. According to the firstrespondent the following two criminal cases were not disclosed bythe petitioner while filling the nomination form.(i)Regular Criminal Case No.294 2015 whereinRespondent No.1 is Accused No.2 and which is pending before theHon’ble 1st Chief Judicial Magistrate Thane at Thane for offencespunishable u s. 406 409 34 of I.P.C.(ii)Case No.4414 SS 2005 pending before the Hon.43rd Metropolitan Magistrate Court Mumbai wherein theRespondent No.1 is arrayed as Accused No.1.5.It was contended that by furnishing such false incomplete and misleading information the petitioner has misleadand mis represented to the voters of the constituency about his cleanimage “resulting in supremacy over other candidates”. According tothe first respondent on account of such misleading information thevoters were induced by the petitioner to cast votes in favour of thepetitioner although the petitioner was facing offences of cheating Mamta Kale page on 18 05 2021 on 22 03 1 wp 4838 19criminal breach of trust and other offences involving moralturpitude. It is contended that this has materially affected the resultof the election.6.On behalf of the first respondent reliance was placedon a notification dated 1 September 2006 issued by the StateElection Commission according to which a candidate contesting anelection is obliged to make full and complete disclosure with regardto the matters in para 5 of the preamble of the said notification. Itwas contended that in the event of a candidate furnishingincomplete incorrect or false information or failing to furnish fulland correct information with regard to the five matters it would bea sufficient ground for setting aside his election as he would bedisqualified under the relevant provisions of law. The disclosurewhich is required to be made by the candidate on the five aspects isas underabove.7.It was contended that had the petitioner not made anyfalse representation and or misleading statements and declarations the first respondent would have had a level playing field in theelection.8.There was another ground about the cheque issued bythe petitioner as a Chairman of Jagmata Charitable Trust Colbartowards the property taxes pertaining to Jagmata Shankar Mandirbeing returned as dishonoured. It was therefore contended that NoDues certificate issued by the Corporation was not valid.9.For the present purpose we are not concerned with thesaid ground as the Trial Court has principally allowed the electionpetition on the ground of alleged non disclosure of the two criminalcases in the nomination form although the Trial Court has held thatthis does not amount to a corrupt practice. The Trial Court hasMamta Kale page on 18 05 2021 on 22 03 1 wp 4838 19relied upon the decision of the Supreme Court in the case ofKrishnamoorthy Vs. Sivakumar 1 in order to find that the petitionerwas disqualified on account of the improper disclosure in thenomination form. The Trial Court had further gone ahead and hasdeclared the first respondent to be elected as a Corporator(inasmuch as the first respondent had secured the next highestvotes) in place of the petitioner.10.It may be mentioned that the petitioner had filed anapplicationunder Order VII Rule 11(a) of the Code of CivilProcedurefor rejection of the petition on theground that it does not disclose any cause of action. The learnedTrial Court by an order dated 5 December 2017 dismissed the saidapplication thus refusing to reject the election petition. Thepetitioner challenged the same before this Court in C.R.ANo.100 2018. This Court by a judgment and order dated 22 March2018 dismissed the revision application thereby confirming theorder passed by the Trial Court.11.The petitioner resisted the election petition. It wascontended that the allegations regarding corrupt practice and or1(2015) 3 SCC 467 Mamta Kale page on 18 05 2021 on 22 03 1 wp 4838 19undue influence were vague and baseless and in fact defamatory innature. It was denied that the petitioner had intentionally concealedthe pendency of any criminal case. It is submitted that except thecase which was disclosed there were no other criminal casespending against the petitioner “which were required to be disclosedin the nomination form”. It was contended that in RCCNo.294 2015 charge was yet to be framed and therefore it was notobligatory on the part of the petitioner to disclose the same in thenomination form as the cognizance was not yet taken. In so far asRCC No.4414 SS 2005 is concerned it was pointed out that thesame is dismissed long back in the year 2009. It was thus deniedthat there was any false incomplete or misleading informationfurnished in the nomination form. The allegations about there beingdefault in the payment of taxes in respect of Jagmata CharitableTrust Colbar were also denied.12.On the basis of the rival pleadings the learned TrialCourt framed the following issues.Sr.No.Issues1Does the petitioner prove that respondent No.1has made false incomplete and misleadingstatement in declaration furnished by him Mamta Kale page on 18 05 2021 on 22 03 1 wp 4838 192Does said alleged statements in declaration havematerially affected result of election 3Is respondent No.1 liable for disqualification onaccount of said alleged statements made indeclaration 4Is the petition tenable on grounds mentioned init 5Is the petitioner entitled for relief sought for 6Costs on whom to be saddled 7What order and decree 13.At the trial the first respondent examined himself(P.W.1) alongwith Ms. Snehlata Kolteand produceddocuments including certified copy of the roznama in RCCNo.1690 2019 alongwith others.14.The petitioner examined himselfnon disclosureof the offencein the affidavit filed alongwith the nominationform ii) such non disclosure being in breach of any law ornotification which is applicable and which is binding and iii) thatsuch non disclosure has materially affected the result of the election.18.It is submitted that none of these aspects have beenpleaded or proved by the first respondent. It is pointed out that thelearned Trial Court in paragraph 25 of the judgment has held thatthere is no evidence to establish the ground of corrupt practice asagainst the petitioner. It is submitted that in such circumstances theground based on Section 100(1)(b) of the Representation of theMamta Kale page 1 on 18 05 2021 on 22 03 1 wp 4838 19Peoples Act 1951no longer survives. It is submittedthat in so far as non disclosure of offence criminal cases isconcerned the Trial Court has failed to notice as to under which lawthe petitioner was mandated to make such disclosure. The learnedcounsel was at pains to point out that strict rules of pleading applyto election petition. It is pointed out that the first respondent apartfrom failing to plead necessary details had also failed to producethe notification dated 1 September 2006. It is submitted that thusthe fundamental requirement of clauseof Section 100(1)(b)was not satisfied. It is submitted that the learned Trial Court inparagraph 49 of the judgment has also observed that the firstrespondent has not pleaded that the non disclosure of the offencehas materially affected the election of the petitioner and inspite ofthat the learned Trial Court has erroneously proceeded to hold thatthe non disclosure of the offence has materially affected theelection. It is pointed out that the reliance placed on the decision inthe case of Krishnamoorthy is misplaced in as much as it was a caseof corrupt practice which is not held to be proved on facts in thepresent case. It is submitted that the Trial Court was also in error inplacing reliance on the decision in the case Kisan Shankar KathoreVs. Arun Dattatray Sawant1. It is submitted that the election1(2014) 14 SCC 162Mamta Kale page 1 on 18 05 2021 on 22 03 1 wp 4838 19petition was essentially under Section 16 r w. Section 403 of the Actof 1949 and therefore the first respondent ought to have pleadedand proved the fact of non disclosure of the offence havingmaterially affected the result of the election. It is thus submittedthat the Trial Court was in error in setting aside the election of thepetitioner. 19.The learned counsel has also taken exception to the firstrespondent being declared as elected in the place of the petitioner.It is submitted that no such course was open having regard to theprovisions of the said Act of 1949. 20.Mr. Kulkarni the learned counsel for the respondentNo.1 has supported the impugned judgment. It is submitted that theState Election Commission has issued an order on 5 October 2015under Article 243 ZA of the Constitution of India read with Section14 of the said Act prescribing the nomination form and the affidavitin support thereof. It is submitted that the said order is a piece ofsubordinate legislation which need not be pleaded. It is submittedthat the Court can take judicial notice of the same under Section 57of the Evidence Act. It is submitted that under Section 16 read withSection 403(3) of the Act the Trial Court has all the powers andMamta Kale page 1 on 18 05 2021 on 22 03 1 wp 4838 19jurisdiction to take cognizance of the said order and to decide theelection petition accordingly.21.In so far as the ground about non production ofnotification dated 1 September 2006 is concerned it is submittedthat this was not the ground raised before the Trial Court nor it hasbeen raised in the present petition. Quite to the contrary in theWritten Statement the petitioner has conceded about the existenceof the notification dated 1 September 2006 being part and parcel ofthe general election ‘guidelines and regulations’. It is submitted thatthe petitioner in the Written Statement has raised a defence that hewas required to disclose only those cases where the charge is framedand not the cases where merely the cognizance is taken. It issubmitted that thus the contention about the non production of thenotification dated 1 September 2006 is misconceived. 22.The learned counsel placing reliance on the decision ofthe Supreme Court in the case of Krishnamoorthy has submittedthat once it is established that the successful candidate was involvedin certain criminal cases and there is no disclosure of those cases the same would amount to corrupt practice. It is submitted that thepetitioner has admitted in the cross examination that he did notMamta Kale page 1 on 18 05 2021 on 22 03 1 wp 4838 19disclose Criminal Case No.294 2015 because no charge was framedagainst him in that case. It is submitted that thus the only questionbefore the Trial Court was whether the non disclosure of the saidcase will result into invalidation of the election. It is submitted thatthe first respondent has clearly pleaded that non disclosure of thecriminal cases involving offences inviting sentence of two years ormore has deprived the voters from exercising their franchise freelyand the election is vitiated by undue influence and corrupt practice.The learned counsel has pointed out that in paragraph 8 of theelection petition it has been specifically pleaded that such non disclosure has materially affected the result of the election. 23.The learned counsel placing reliance on the decision ofthe Supreme Court in Krishnamoorthy and Kisan Shankar Kathorehas submitted that such non disclosure will result into the electionbeing materially affected. It is submitted that there is no perversityin the findings recorded by the Trial Court and even assuming thatthe Trial Court has misread paragraph 83 and 86 of the judgment inKrishnamoorthy this Court can clarify the same while refusing tointerfere with the ultimate finding which does not suffer from anyperversity. In support of such proposition the learned counsel hasplaced reliance on the decision of the Constitution Bench of theMamta Kale page 1 on 18 05 2021 on 22 03 1 wp 4838 19Supreme Court in the case of Syed Yakoob Vs. K. S. Radhakrishnan& Others 1. It is submitted that an error of law which is apparent onthe face of the record can be corrected by the Writ Court but not anerror of fact. 24.The learned counsel has submitted that the election ofthe petitioner having been found to be invalidated the Trial Courtwas justified in declaring the first respondent as elected as he wasthe candidate having secured the second highest number of votes.25.The learned counsel was at pains to point out that theoffences for which the petitioner is facing prosecution are underSection 406 and 409 read with Section 34 of the IPC which invitessentence of more than two years. It is submitted that this Courtwhile deciding the revision application challenging the order passedby the Trial Court under Order VII Rule 11 of CPC has held thatcognizance was taken by the Court and that finding having attainedfinality cannot be revisited. Reliance is placed on the decision of theSupreme Court in the case of R.R. Chari Vs. State of Uttar Pradesh 21AIR 1964 SC 4772AIR 1951 SC 207Mamta Kale page 1 on 18 05 2021 on 22 03 1 wp 4838 19and State of Karnataka and Anr. Vs. Pastor P. Raju1 in order to submitthat taking cognizance does not involve any formal action andcognizance is taken once the Magistrate has applied his mind to thefacts about commission of the offence. It is submitted that theimpugned judgment does not suffer from any infirmity and thepetition be dismissed.26.I have carefully considered the rival circumstances andthe submissions made. Following points arise in this petition fordetermination.(i)Whether the election of the petitioner is liable to be setaside on the ground of non disclosure of the pending criminalcase s by the petitioner in the nomination form affidavit amounting to undue influence and or corrupt practice vitiating theelection of the Act 6 SCC 728 Mamta Kale page 1 on 18 05 2021 on 22 03 1 wp 4838 1927.Point No.Thane in which thepetitioner was accused No.2. The nomination formwithaffidavit was filed by the petitioner on 3 February 2017 when thesaid case was pending. It is also a matter of record that theMamta Kale page 1 on 18 05 2021 on 22 03 1 wp 4838 19petitioner only disclosed one criminal case as Case No.250in the nomination form. The petitionermentioned that the said case was pending before the Thane courtunder section 143 and 145 in which the court had taken cognizanceon 27 January 2017. We are principally concerned with the nondisclosure of RCC No.294 2015and theeffect thereof. 30.Clause 7 of the nomination form is relevant for thepurpose. It contains two parts. Part 7(a)which is relevant is invernacular.31.It can thus be seen that it pertains to disclosure ofoffence s which would attract sentence of two years or more andwhether a chargesheet is filed or not in respect thereof. Part 7(b)pertains to conviction with which we are presently not concerned.Admittedly the pendency of RCC No.294 2015 in which thepetitioner was facing prosecution for the offences under section 406and 409 r w section 34 of IPC has not been disclosed in thenomination form and the affidavit. The petitioner has not disputedthe pendency of RCC No.294 2015 in which he is accused No.2. Inthe written statement he claimed that he received theMamta Kale page 1 on 18 05 2021 on 22 03 1 wp 4838 19summons notice in the said case after filing of the nomination form.It is next contended that even otherwise it was not necessary for thepetitioner to disclose the said case as the court had not takencognizance or framed charge in it. In para 12 of the writtenstatement the petitioner however did not dispute that “everycandidate contesting an election is obliged to make true and correctdisclosure of all his details before the public at large so as to enablethe voters to make a meticulous decision as to in whose favour thevote is to be cast”.32.It would now be necessary to refer to the evidence ofthe petitioner. The petitioner has admitted that it is mandatory tomention the criminal background in the nomination form as per theelection rules and the “Supreme Court decisions”. He claimed thathe did not mention the said case in the nomination form as therewas no charge framed in the said case. He admitted the documentsat Exh.123 124 126 127 and 128 which would clearly go to showthat the petitioner had appeared in the said case. Exh.128 forinstance is a copy of the exemption application filed on behalf of thepetitioner much prior to the filing of the nomination from. It canthus be seen that the factum of the pendency of the said case undersection 406 409 of IPC in which the petitioner was accused No.2Mamta Kale page 2 on 18 05 2021 on 22 03 1 wp 4838 19and the petitioner being aware of the said case prior to the filing ofthe nomination form is well established on record. The offences arepunishable with a sentence in excess of two years. The record alsodiscloses that the court had taken cognizance in the matter assummons was issued and the petitioner had put in appearance. It isnow well settled that the court takes cognizance when the courtapplies its mind to the prosecution case and the material producedand proceeds against the accused. Framing of charge in warrant atriable caseis a further stage where the accused is not discharged undersection 329 of the Code of Criminal Procedureand under section 240 of the code the courtis of the opinion that there is ground for presuming that theaccused has committed the offence. 33.It is true that the ground on which the election isassailed have to be properly pleaded. I have carefully gone throughthe election petition and I find that the ground based on nondisclosure of the criminal antecedent has been adequately pleadedin the petition. It is true that the burden to establish the ground swould lye on the candidate assailing the election. However it cannot be equated with the burden similar to one on the prosecution inMamta Kale page 2 on 18 05 2021 on 22 03 1 wp 4838 19a criminal case. In the present case as noticed earlier the petitionerdid not dispute that every candidate was under obligation todisclose the criminal antecedent. He also did not dispute thependency of the RCC No.294 2015. The contention that he was notaware of the said case prior to filing of the nomination form cannotbe accepted in view of the documents referred to above which wereconfronted to the petitioner in the cross examination and have beenadmitted. It also appears that a summons notice was issued to thepetitioner which would indicate that the CJM had applied mind andthe cognizance was taken. The offences indeed invite sentence inexcess of two years. Thus the contention based on the want ofadequate pleadings and the failure to produce the notification dated1 September 2006 in my view cannot be accepted more so when theground about non production was not raised before the trial courtnor it is raised in the petition. The ground appears to have beenpressed in service for the first time during the submissions at the bar.That apart as per section 14(1) of the Act the superintendence direction control and conduct of the election to the corporationsvests in the State Election commission. The Commission in exerciseof the said powers has prescribed the form of nomination andaffidavit by orders from time to time which have been revised byorder dated 5 October 2015. The nomination form in this case is asMamta Kale page 2 on 18 05 2021 on 22 03 1 wp 4838 19prescribed by the Commission of which judicial notice can be taken.For this reason also the ground based on the non production of theNotification dated 1 September 2006 cannot be accepted.34.The trial court has relied on the decision of theSupreme Court in Krishnamoorthy and Kisan Kathore. The learnedcounsel for the petitioner has submitted that the said decisions willbe inapplicable as they arose out of an election dispute under theRepresentation of the Peoples Act. It is submitted that in the case ofKisan Kathore there were statutory provisions which were found tobe not complied and in the election petition it was pleaded that thesame has materially affected the result of the election. It iscontended that the requirements of Section 100(1)of the saidAct were complied in that case. It is pointed out that the learnedTrial Court in para 49 of the judgment has found that the petitionerhad not pleaded that the election is materially affected by thealleged non disclosure.35.In so far as the case of Krishnamoorthy is concerned it issubmitted that it was a case where the election was challenged onthe ground of corrupt practice under section 100(1)(b) of the Act of1951. It is pointed out that the Trial Court in this case has refused toMamta Kale page 2 on 18 05 2021 on 22 03 1 wp 4838 19uphold the ground of corrupt practice and in any event the case ofKrishnamoorthy did not apply in this case. 36.Before dealing with the submissions as raised it isnecessary to make a reference to the decision of the Supreme Courtin Union of India Vs. Association of Democratic Reforms1. Thequestion involved in that case was whether the voters have a rightto know relevant particulars of the candidate. The Supreme Courtreferring to its earlier decisions found that right to vote is a part offundamental right to freedom of speech and expression underArticle 19(1)of the Constitution of India as a voter’s speech orexpression in case of election would include casting of votes. For thispurpose information about the candidate to be selected is a must. Ithas been held that the right to know the antecedents includingcriminal past of the candidate contesting election for Member ofParliamentand Member of Legislative Assemblyismuch more fundamental and basic for the survival of democracy.The Supreme Court in para 48 of the Judgment directed the ElectionCommission to call for information on affidavit by issuing necessaryorder in exercise of powers under Article 324 of the Constitution ofIndia on the five aspect as referred to above. It is true that the said1(2002) 5 SCC 294Mamta Kale page 2 on 18 05 2021 on 22 03 1 wp 4838 19case pertained to the election of the MPs and the MLAs. In para 49 the Supreme Court has noted that the Election Commission has fromtime to time issued instructions orders to meet the situation wherethe field is unoccupied by legislation.37.It appears that after the said decision the Act of 1951came to be amended in the year 2002 by introduction of Section33A. It is true that there is no similar provision which could befound in the Mumbai Municipal Corporation Act 1988of the Acthas issued the orders including the order dated 5 October 2015prescribing the form incorporating the requirement of disclosure ofthe criminal antecedents. Thus it cannot be accepted that there is nostatutory basis or requirement for disclosure made out in this case.38.In the case of Kisan Kathore the election of theappellant was set aside by the High Court on account of nondisclosure on certain aspects as noted in the judgment. The SupremeCourt while upholding the same has noted the decision inAssociation for Democratic Reforms to hold that the main reason forMamta Kale page 2 on 18 05 2021 on 22 03 1 wp 4838 19issuing the directions by the Supreme Court and the guidelines bythe Commission pursuant thereto is that the citizens have a right toknow about the candidate including his her criminal antecedents.39.In Krishnamoorthy the election was challenged on theground of non disclosure of full particulars of criminal cases at thetime of filling of nomination form as in the present case. TheSupreme Court found that it creates impediment in free exercise ofelectoral right and the election is liable to be declared as null andvoid. The court summed up the law in para 86 as under 86.In view of the above we would like to sum upour conclusions :of the 1951 Act.(e)The question whether it materially affects theelection or not will not arise in a case of this nature.(Emphasis supplied)40.It is true that both the case of Kisan Kathore andKrishnamoorthy arose out of the Act of 1951. However in myhumble opinion the ratio would be applicable with equal force in asmuch as the local authorities such as corporations are alsodemocratic institutions of local self governance. It would beatrocious to assume that the requirement of such disclosure will notapply only because the decision in Kisan Kathore andKrishnamoorthy are rendered in the context of elections under theAct of 1951. It will lead to a situation where a voter exercising hisfranchise at the election of a MP and MLA will have a right to knowthe criminal antecedents of the candidate but will not have any suchMamta Kale page 2 on 18 05 2021 on 22 03 1 wp 4838 19right at the election of a councilor. It is necessary to note that I havealready dealt with ground of non production of thenotification order dated 1 September 2006 and the absence ofstatutory requirement none of which can be accepted. Thus in myconsidered view the principles and the spirit of the aforesaiddecisions would equally apply to the present case. 41.It is necessary to note that there is a specific avermentin para 8 of the petition that the non disclosure of the criminal caseshas materially affected the result of the election. 42.Thus the point No.1 is answered accordingly. Theelection of the petitioner is liable to be set aside on account ofnondisclosure of the Criminal Case No.294 2015 which amounts toundue influence which is an irregularity affecting the result of theelection.43.Point No.Amravati & Ors.4. He submits that the firstrespondent could not have been declared elected by ‘throwing away’the votes cast in favour of the petitioner. He therefore submitted thatthe learned Judge was in error in declaring the first respondentelected.12003(4) ALL MR 5482AIR 1969 SC 6043AIR 1993 SC 9541998Bom.C.R. 578Mamta Kale page 2 on 18 05 2021 on 22 03 1 wp 4838 1946.Section 18 and subsection 5 of section 403 of the Act of1949 which are relevant for the purpose read thus.18.(1)If at any general elections or an electionheld to fill a casual vacancy no councilor is elected oran insufficient number of councilors are elected or theelection of any or all of the councilors is set asideunder this Act and there is no other candidate orcandidates who can be deemed to be elected in his ortheir place theshall appointanother day for holding a fresh election and a freshelection shall be held accordingly.(2)A councilor elected under this section shall bedeemed to have been elected to fill a casual vacancyunder Section 15.403 (2) (4) If an application is made under Section 16that any particular candidateshall bedeemed to have been elected then the returnedcandidate or any other party may give evidence toprove that the election of the person in whose favoursuch declaration is sought would have been void if hehad been declared elected and an application hadbeen presented calling in question his election.If the Judge is of opinion Mamta Kale page 3 on 18 05 2021 on 22 03 1 wp 4838 19(i) that in fact any candidate in whose favourthe declaration is sought has received a majority ofthe valid votes or(ii) that but for the votes obtained by thereturned candidate by corrupt practices suchcandidate would have obtained a majority of the validvotes(7) 47.A conjoint reading of the aforesaid provisions wouldshow that in appropriate case the Court is clothed with jurisdictionto declare the other candidate as elected. There cannot be anymanner of dispute that such power can be exercised only inaccordance with the statutory provisions. To that extent the learnedSenior Counsel for the petitioner is right that such power cannot beexercised for equitable reasons for instance saving of electionexpenses or for any other similar reason. He pointed out that thereliance placed by the learned Trial Court on the decision in GeetaGore is misplaced as that case arose under the provisions of the Actof 1888 where there is specific enabling provision to declare theimmediate rival who has secured the next highest number of votesMamta Kale page 3 on 18 05 2021 on 22 03 1 wp 4838 19as elected. He submitted that the learned Trial Court was in error inproperly appreciating the ratio in the case of DnyneshwarBarabudhe and D.K.Sharma. 48.On the contrary it is submitted by Mr Kulkarni thelearned counsel for the first respondent that the proposition thatunless the voters are informed about the disqualification of thecandidate at the time of election when there are more that twocandidates in the fray is not an absolute proposition for declaringthe candidate receiving second highest votes as elected.49.In the case of Konappa Nadgouda the Supreme Courthas held thus If the number of candidates validly nominated is equalto the number of seats to be filled no poll isnecessary. Whereby an erroneous order of theReturning Officer poll is held which but for thatorder was not necessary the Court would be justifiedin declaring those contesting candidates elected who but for the order would have been declared elected.Where there are more than two candidates in the fieldfor a single seat and one alone is disqualified onproof of disqualification all the votes cast in his favourwill be discarded and the candidate securing the nextMamta Kale page 3 on 18 05 2021 on 22 03 1 wp 4838 19highest number of votes will be declared elected. Insuch a case question of notice to the voters mayassume significance for the voters may not if awareof the disqualification have voted for the disqualifiedcandidate. 50.In the case of D.K. Sharma the respondent RamsharanYadav was declared elected to the Bihar Legislaticve Assembly inFebruary 1990 in which the appellant D.K.Sharma was theimmediate rival having secured second highest votes. The appellantchallenged the election of Ramsharan Yadav on the ground that hisnomination was illegally accepted by the returning officer. It wasclaimed that in the previous assembly election in June 1977 theelection of the first respondent Ramsharan Yadav was set aside onthe ground of commission by him of corrupt practice and he hadincurred disqualification for a period of six years which was toexpire on 30 October 1990. It was thus claimed that the acceptanceof the nomination paper in the election in February 1990was illegal. It so happened thatduring pendency of the said election petition the President of Indiain exercise of powers under subsection 3 of section 8A of the Act of1951 issued a notification disqualifying the respondent Ram SharanYadav for a period of six years. Thus the relief in the electionMamta Kale page 3 on 18 05 2021 on 22 03 1 wp 4838 19petition was confined to the appellant being declared as electedhaving secured second highest votes. Admittedly there wereeighteen other candidates at the said election.51.In such circumstances taking a cue from the decision inKonappa Nadgouda the appellant led evidence to show that thevoters were given sufficient notice and they were aware of thedisqualification. It was therefore contended that the votes cast infavour of Ram Sharan Yadav have to regarded as votes ‘thrownaway’. The High Court on facts found that the evidence was notsufficient to hold that the voters who had cast their votes in favourof Ram Sharan Yadav had done so after having noticed thedisqualification. The Supreme Court concurred with the finding offact so recorded and dismissed the appeal.52.It can thus be seen that the legal position is well settled.In order to treat the votes cast in favour of the successful candidate(whose election is set aside for having incurred a disqualificationand or improper acceptance of the nomination paper) it ought to beproved that the voters had adequate notice and were aware of thedisqualification and inspite of such knowledge voted for thecandidate. This requirement of notice to the voters arises only whereMamta Kale page 3 on 18 05 2021 on 22 03 1 wp 4838 19there are more contestants than two. Thus such a requirement of thenotice would not arise where there are only two candidates in thefray. This is because in such a case if the Trial Court finds that thenomination of the successful elected candidate was wronglyaccepted there would only be one candidate left in the fray notrequiring any election. 53.It is not possible to accept the contention on behalf ofthe first respondent that the aforesaid proposition as laid down inthe case of Konappa Nadgouda which has been followed in the caseof D.K.Sharma and relied upon by this court in the case ofDnyaneshwar Barabudhe is not an absolute proposition. It is clearthat it is the well settled principle to which no exception is shown tobe carved out in the decision in Konappa Nadgouda except wherethere are only two candidates in the fray. No decision has beenbrought to my notice that the said proposition is not an absoluteproposition or that it admits of any exception and if so in whatcircumstances.54.Coming to the present case it was a multicorneredcontest involving more than two candidates. The First respondenthas neither pleaded nor there is any evidence to show that theMamta Kale page 3 on 18 05 2021 on 22 03 1 wp 4838 19voters were put to notice about the disqualification or otherwise ofthe petitioner. Thus although the election of the petitioner is setaside the votes polled in his favour cannot be treated as votes‘thrown away’ there by entitling the first respondent to be declaredas elected in the place of the petitioner.55.I find that the reading of the decision of this court inDnyaneshwar Barabudhe by the learned Trial Court is entirelywrong. In that case the concerned ward of Amaravati MunicipalCorporation was reserved for candidate belonging to OtherBackward Classwas declared elected.56.This court found that the reason for which the secondrespondent was declared elected namely to save the expenses forreelection was not a valid ground. This court placing reliance on thedecision of the Supreme Court in Konappa Nadgouda also foundthat the second respondenthad not led anyevidence whatsoever to show that the voters were given noticeabout the disqualification of the third respondent. In that view ofthe matter the judgment declaring the second respondent as electedwas set aside.57.The trial court while distinguishing the said judgmenthas observed that the declaration of election was not granted as theseat was reserved for a OBC candidate and the second highestcandidate was a non OBC candidate which is factually incorrect.Mamta Kale page 3 on 18 05 2021 on 22 03 1 wp 4838 1958.The reliance by the learned Trial Court on the decisionin Geeta Gore is equally misplaced. That was a case of an election ofa councilor of the Brihan Mumbai Corporation under the Act of1888 The concerned ward was reserved for a candidate belonging toOBC women category. During the pendency of the election petitionthe Caste Scrutiny Committee had invalidated the caste claim of thepetitioner Geeta Gore which was upheld by this court. Thus the onlyquestion in the election petition was about the relief of declarationof the respondent No.4as elected in theplace of Geeta Gore. This court placing reliance on section 33(2) ofthe Act of 1888 found that the language of the said section isexplicitly clear and unequivocal under which if the Chief Judge ofthe Small Causes Court finds that the elected councilor isdisqualified and his election is declared null and void the ChiefJudge shall direct the candidate securing the next highest votes tobe deemed to have been elected.59.The learned Senior Counsel for the petitioner is rightthat there is no similar provision which could be found in the Act of1949. Thus the relief of declaration granted cannot be sustained onthe basis the judgment in the case of Geeta Gore which isMamta Kale page 3 on 18 05 2021 on 22 03 1 wp 4838 19inapplicable in this case. In my considered view the saiddeclaration could not have been granted in the absence of a findingas to satisfaction of the requirements of section 403(5) of the Act of1949. The point No.2 is answered accordingly.60.The impugned order needs to be partly modified. In theresult the petition is partly allowed. The part of the judgmentdeclaring the first respondent elected as a Councilor from WardNo.12 D is hereby set aside. The part of the judgment setting asidethe election of the petitioner from the said ward is herebyconfirmed. Rule is partly made absolute in the aforesaid terms withno order as to costs.61.At this stage the learned counsel for the Petitionerseeks extension of the interim relief which is operating from 15 April2019.62.Mr. Kulkarni the learned counsel for the firstrespondent has strongly opposed the same. He points out that thereis now a concurrent finding by which the election of the petitionerhas been set aside and considering the balance tenure left it wouldnot be appropriate to continue the interim relief.Mamta Kale page 3 on 18 05 2021 on 22 03 1 wp 4838 1963.Mr. Apte the learned Senior counsel for the respondentNo.6 has left it to the discretion of the Court.64.Having regard to the fact that the interim relief isoperating from 15 April 2019 the same is extended for a period ofsix weeks from today. C.V. BHADANG J.Mamta Kale page 4 

Summary: In order to consider the votes cast in favour of a successful candidate, it must be proved that voters had adequate notice and were aware of the disqualifications of the candidate contesting elections and in spite of such knowledge, they went ahead and casted their vote for that particular candidate. A single-judge bench comprising of Justice C.V. Bhadang, while adjudicating the matter in Mr Ashok Rajam Raul v. Mr Mandar Pramod Vichare; [CIVIL WRIT PETITION NO.4838 OF 2019], dealt with the issue of awareness of voters about the credibility of candidates contesting elections. The general elections of the Municipal Corporation were held in which the petitioner and the respondent Nos.1 to 4 were the contesting candidates. In the said election, the petitioner polled highest number of votes being. The petitioner having secured the highest number of votes was declared elected. The first respondent filed election petition before the learned Civil Judge, challenging the election of the petitioner on the ground that the petitioner was disqualified to contest the said election and on account of a material irregularity in the election proceedings and the corrupt practice. In short, according to the first respondent, the petitioner filed his nomination form furnishing false, misleading and incomplete information. While elaborating the said ground, it was contended that the petitioner had disclosed in the nomination form that there is only one criminal case pending against him, while there were two other criminal cases in which the petitioner was facing trial. According to the first respondent, the following two criminal cases were not disclosed by the petitioner while filling the nomination form. The counsel appearing for the petitioner stated that by furnishing such false, incomplete and misleading information, the petitioner has misled and mis-represented to the voters of the constituency about his clean image “resulting in supremacy over other candidates”. According to the first respondent, on account of such misleading information, the voters were induced by the petitioner, to cast votes in favour of the petitioner, although the petitioner was facing offences of cheating, criminal breach of trust and other offences, involving moral turpitude. It is contended that this has materially affected the result of the election.