Bombay High Court
Sou. Indumati Laxman Bhakare vs The State Of Maharashtra, Through The ... on 17 March, 2004
Equivalent citations: 2004(3)MHLJ6, 2004 A I H C 2000, 2004 BOM LR 3 709, (2004) 20 INDLD 245, (2004) 4 ALLMR 89 (BOM), (2004) 3 MAH LJ 6
Author: D.Y. Chandrachud
Bench: D.Y. Chandrachud
JUDGMENT D.Y. Chandrachud, J.
1. Rule, returnable forthwith. Learned Counsel appearing on behalf of the Respondents waive service. By consent taken up for hearing and final disposal.
2. On 14th January 2003, the Additional District Judge, Pandharpur, dismissed two election petitions challenging the election of Chhaya Arun Patil, as President of the Municipal Council of Sangola on a seat reserved for women. One of the two election petitions was filed by a defeated candidate, while the other was by a voter of the Constituency. Aggrieved by the rejection of the election petitions these two election Petitioners have moved this Court in proceedings under Article 227 of the Constitution. The third writ petition has been filed by the elected candidate in order to challenge the decision of the Additional District Judge in so far as he held that she had incurred a disqualification under Section 16(1)(i) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 ("the Act"). Though the Trial Court came to the conclusion that a disqualification had been incurred, the election petitions came to be rejected solely on the ground that the validity of the nomination of the elected candidate had not been objected to before the Returning Officer.
3. The election programme to the post of the President of the Municipal Council of Sangola was declared on 2nd November 2001. The last date for submission of nominations was 9th November 2001. The scrutiny of the nomination papers was conducted on 13th November 2001 upon which a final list or voters was published. The last date for the withdrawal of nominations was 20th November 2001; the list of candidates was published on 21st November 2001 and voting was held on 2nd December 2001. The results of the election were declared on 3rd December 2001. The seat of the President was reserved for women. The Fifth Respondent in Writ Petitions 7940 and 7970 of 2003 was declared elected. The name of the returned candidate was published in the Official Gazette on 6th December 2001. Both the election petitions were instituted within a period of ten days thereafter and, therefore, within the period of limitation prescribed by Section 21 of the Act.
4. Before setting out the factual basis for the contention that the elected candidate was not qualified to become a Councillor, it would be appropriate to refer briefly to the provisions of Section 16(1)(i) of the Act with reference to which the averments in the election petitions were founded. Section 16(1)(i) provides thus:
"16. Disqualifications for becoming Councillor:- (1) No person shall be qualified to become a Councillor whether by election or nomination who,-
(i) save as hereinafter provided, has directly or indirectly, by himself or his partner, any share or interest in any work done by order of a Council or in any contract with or under or by or an behalf of a Council;"
Section 21(1) stipulates that no election or nomination of a Councillor may be called in question, except by a petition presented to the District Court by a candidate at the election or by any person entitled to vote at the election, within ten days from the date of publication of the nanes of the Councillors in the Official Gazette under Sections 19 or 20, as the case may be.
5. In the present case, the husband of the elected candidate had been awarded various contracts by the Municipal Council of Sangola. These contracts were in respect of diverse items of civil work, maintenance of roads, sewerage facilities and other Municipal work. According to the election Petitioners, a total 19 different categories of work had been awarded to him at a cost in excess of Rs. 10 lakhs. 9th November 2001 was the date on which the elected candidate filed her nomination. By a letter written on 9th November 2001 to the Chief Executive Officer of the Municipal Council, the spouse of the elected candidate recorded that in pursuance of the contracts which had been awarded to him by the Municipal Council, he had completed the work in certain cases, while : certain other cases work had been completed in part or was still to be commenced. The letter then stated that as elections had been announced to the Municipal Council, the Contractor's spouse intended to contest as a candidate either to the post of a member of the Municipal Council or to the post of President. In order to ensure that no bar came :-the way of her contesting the elections, it was recorded in the said letter that the contractor was not in a position to complete the work which has been awarded to him under the contracts. Ail the contracts were accordingly terminated. The contractor recorded that he would be responsible to the Municipal Council to reimburse any loss that may be incurred on account of the termination of the contracts. Responding to the aforesaid letter, the Chief Executive Officer of the Municipal. Council by a letter of the same date, stated that having regard to the contents of the Contractor's letter and the willingness expressed by him to compensate the Municipal Council for any damages that may be sustained by it, all the contracts which had been executed with him by the Municipal Council stood terminated. On 25th January 2002, the Municipal Council passed a resolution which was signed by the elected candidate who by then had assumed office as President of the Council. By its resolution, the Municipal Council accorded its approval to the following steps being taken with reference to the Contractor's letter dated 9th November 2001;
(i) The Municipal Council sanctioned the payment of all the bills of the Contractor in respect of work which had seen completed upto 9th November 2001;
(ii) The work which had been done by the contractor until 9th November 2001 was directed to be measured and in accordance therewith, a decision was taken to pay the bills of the Contractor. Fresh tenders were to be invited for the work which remained to be completed;
(iii) Work which had been sanctioned in favour of the Contractor until 9th November 2001, but which came to be terminated by him on 9th November 2001 would be subject to the invitation of fresh tenders for the completion of the work;
(iv) Finally, it was stated that in the event that any financial loss had been caused to the Municipal Council, the same should be recovered from the Contractor in accordance with what had been agreed upon by him.
6. The ground which was set forth in the election petitions was that an 9th November 2001, the elected candidate was not qualified to become a Councillor since within the meaning of Section 16(1)(i) she had, directly or indirectly, a share OP interest in any work done by order of a Council or in any contract with or under or by or on behalf of a Council. Evidence was adduced at the trial of the election petition on behalf of the Petitioner in Writ Petition 7970 of 2003 and by the elected candidate. The Additional District Judge by his judgment and order dated 14th January 2003 held inter alia that (i) The election petition had been instituted within the period of limitation; (ii) The second election petition was also Maintainable since the Petitioner there was in fact, a voter in the Constituency; (iii) Though the spouse of the elected candidate had terminated the contracts before the nomination papers had been submitted for the ensuing election, payment was still due to be made by the Municipal Council as is apparent from the subsequent resolution dated 25th January 2002 to which the elected candidate was a party in her capacity as President of the Council; (iv) The elected candidate clearly had an interest within the meaning of Section 16(1)(i) in the work done by order of the Council in so far as the moneys were still due and outstanding to her husband and that this would involve a conflict of interest and duty; and (v) The elected candidate was consequently not qualified in view of the provisions of Section 16(1) (i) of the Act. Having held thus, the Additional District Judge came to the conclusion that the election petitions were liable to be dismissed on the ground that when the nomination papers were scrutinized, no objection had been raised and that under Rule 15(10) of the Rules framed under the Act, the decision of the Returning Officer accepting or rejecting the nomination paper was final and could not be called into question in any Court. The election Petitioners before the Trial Court have each filed a petition in this Court challenging the rejection of the election petitions. The elected candidate has filed a petition of her own under Article 227 of the Constitution questioning the correctness of the finding which has been arrived at to the effect that she had incurred a disqualification under Section 16(1)(i) of the Act.
7. Before considering the tenability of the rival submissions which have been urged before the Court, it would, at the outset, be necessary to set in contrast the provisions of Section 16(1)(i) of the Act with the provisions of Section 9A of the Representation of People Act, 1951:
"16. Disqualifications for becoming Councillors-
(1) No person shall be qualified to became a Councillor whether by election or nomination who,-
(i) save as hereinafter provided, has directly or indirectly, by himself or his partner, any share or interest in any work done by order of a Council or in any contract with or under or by or on behalf of a Council;"
"9A. Disqualification for Government contracts, etc.- A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or 3 for the execution of any works undertaken by, that Government.
Explanation.-For the purposes of this section, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact that the Government has not performed its part of the contract either wholly or in part."
8. A comparison of these two provisions will show that a disqualification under the Representation of the People Act. 1951 is attracted if and so long as a contract entered into by a person in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any work undertaken by the Government subsists. The explanation provides that once the contract has been fully performed it is deemed not to subsist by reason only of the fact that the Government had not performed its part of the contract wholly or partially. Section 16(1)(i) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 is significantly wider in its scope and content. First and foremost, under Section 9A, the disqualification is attracted if there is a subsisting contract. If the contract had come to an end before the submission of the nomination, there is indeed no disqualification. Moreover, where a contract has been fully performed by the person by whom it had been entered into with the government, it shall be deemed not to subsist even if Government has not performed its part of the contract fully or in part.
9. Clause (i) of Sub-section (1) of Section 16 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, on the other hand, can be divided into two parts. The first is where a person has directly or indirectly by himself or his partner, any share or interest in any work done by order of a Council. The second is where a person has directly or indirectly by himself or his partner, any share or interest in any contract with or under or by or on behalf of a Council. The second part of Clause (i) refers to the existence of a share or interest in a contract with the Municipal Council. Arguably, the expression "any contract" would refer to a subsisting contract. However, the disqualification that is contemplated under Clause (i) of Sub-section (1) of Section 16 is on grounds which are ex-facie significantly wider than those prescribed by Section 9A of the Representation of People Act, 1951. The first ground which is spelt out in clause (i) of Sub-section (1) of Section 16 namely, of having directly or indirectly any share or interest in any work done by order of a Council does not find place in Section 9A of the Representation of People Act, 1951. Moreover, as distinguished from Section 9A, under Section 16(1)(i), the share or interest in work done by order of a Council or in any contract with, or under or by or on behalf of the Council may be direct or indirect. The share or interest may be of the person himself or for that master of his partner.
10. The legislature while prescribing a ground for disqualification in Clause (i) of Sub-section of Section 16 has designedly used expressions of width and amplitude. The plain reason for doing so is to obviate situations involving conflict as interest and duty. A situation of such conflict is liable to arise where a person who has a share or interest in any work done by order of a Council thereafter contests an election in order to become a Municipal Councillor or is nominated to the post. Upon election or as the case may be, nomination to the post of Municipal Councillor, such a person who has a share or interest in any work done by order of a Council is in a position to use his position as a Municipal Councillor to protect his share of interest either by ensuring payment in respect of work which has been done or in myriad different ways. Blessed with the trappings of office, the position of such a person is liable to involve a real conflict of interest and duty. Similar situations involving a conflict of interest and duty are liable to arise where a person who has a share or interest in any contract with a Municipal Council becomes a Municipal Councillor. A Municipal Contractor who dons the robes of a Municipal Councillor cannot tie expected to protect the interests of the Municipal Council particularly when they come into conflict with his own personal interests or the interests of the class whom he represents. Section 16(1)(i) seeks to achieve the salutary public interest- of protecting the Municipal Council and the wider community which the Council is intended to serve against an unholy(SIC) nexus between Municipal Councillors and those who have dealings of the class referred to in Clause (i). A person who has a share or interest in any work done by order of a Council or is in a contract with, under or by or on behalf of a Council is disqualified from becoming a Municipal Councillor.
11. The expression "any share or interest in any work done by order of a Council" must apply to a situation where a Municipal Contractor who has carried out work by order of a Council retains directly or indirectly an interest in receiving payment for work done. Such a person has a share or interest in any work done by order of a Council because he has a vital personal interest in the realisation of the outstanding dues in respect of the work which has been done. The fact that the contract does not subsist on the ground that it has been terminated will not protect him against the disqualification in the first part of Clause (i) so long as he continues to have an interest in ensuring receipt of payment for work which has been carried out during the subsistence of the contract.
12. The facts of the present case are indeed eloquent. The spouse of the elected candidate was a Municipal Contractor to whom several contracts had been awarded for carrying out diverse items of work by order of the Council. On 9th November 2001, he terminated the contracts recording that since his wife was filing her nomination for contesting the post of Municipal Councillor or of the President of the Council, he desired to terminate the contracts. Undoubtedly, upon such termination, those contracts came to an end. Thereafter, the spouse of the Contractor contested the election and was elected as President of the Municipal Council. The ink on the declaration of the election results had barely dried when on 25th January 2002 a resolution was passed by the Municipal Council in terms already noted earlier, authorising the Municipal Council to defray the bills of the Contractor in respect of work which he had already carried out. Fresh tenders were to be invited for work which remained and for good measure it was also stated that in the event that the Municipal Council suffered any loss, it should be recovered from the Contractor. The resolution bears the signature of the elected candidate as the President of the Municipal Council. The situation which has arisen in the present case is exactly one which the legislature sought to obviate by enacting the provisions of Clause (i) of Sub-section (1) of Section 16. The interest which the Municipal Contractor has in securing payment for work which had been carried out involves a clear conflict of interest and duty of if the contractor himself or his spouse is elected as Municipal Councillor or President.
13. The expression "directly or indirectly" in Clause (i) of Sub-section (i) of Section 16 is broad enough to include a case where the spouse of the candidate has a share or interest in any were done by order of a Council or in any contract entered into by or with a Council. This aspect of the matter stands concluded by a judgment of a Full Bench of this Court consisting of Chief Justice R.M. Kantawala, Mr. Justice V.D. Tulzapurkar (as the Learned Judge then was) and Mr. Justice B.A. Masodkar in Dattatraya Narhar Pitale v. Vibhakar Dinkar Gokhala, 1975 Mh.L.J.701. In the case before the Full Bench, the wife of the elected candidate was the Headmistress of a Municipal School and that was the ground on which he was held to have incurred a disqualification within the meaning of Section 16(1)(i). Before the Full Bench it was urged that merely because the wife of the elected candidate was an employee with a Municipal Council, it could not be said that her husband had directly or indirectly an interest in a contract with, under or by or on behalf of a Council. Rejecting the submission, the Learned Chief Justice, speaking for the Full Bench held thus:
"The fact whether the Petitioner has interest, direct or indirect, in the contract under or on behalf of a council will depend upon facts of each case. In Gulam's case the son of a candidate was employed under the Municipal Committee but he was staying entirely separate from his father. That is not the position in the present case. It is admitted that the wife of the applicant is staying with him. When such is the position, then both husband and wife have mutual interest in the earning of each other. On the contrary, if a view was taken that the husband has no direct or indirect interest in the contract of his wife with the Municipal Council, there is likely to be a conflict of interest and duty between the two. If any action is contemplated against the wife by reason of any misconduct or default on the Dart of the Head-Mistress, then, it will be the duty of the Municipal Council to see that the case is decided on its own merits irrespective of other considerations. Placed in such a situation, the husband will naturally be faced with a conflict between interest and duty. Even likelihood of conflict, in our opinion, will suffice."
14. In Chaturbhuj Vithaldas Jasani v. Moreshwar Parashram, , the Supreme Court construed the provisions of Section 7(d) of the Representation of the People Act, 1951 which at the material time provided that "A persons shall be disqualified for being chosen as, and for being, a member etc. ... (d) if . ... by himself ... he has any share or interest in a contract for the supply of goods (to) ... the appropriate Government." Jasani was elected to the General seat in the Bhandara Parliamentary Constituency and his election was challenged on the ground That he was subject to the disqualification set cut in Section 7(d). The ground was that he was and continued to be a partner in a firm which at all material times had a contract to supply bidis to the Government for the troops. Mr. Justice Vivian Base delivering the judgment of a Bench of three Learned Judges of the Supreme Court held that even if it was assumed that the partnership firm had fully performed its part of the contract by placing the goods on rails before the last date for filing the nomination papers at the election, the contracts were not at an end until the vendors were paid and the contracts were fully discharged. The Supreme Court held that a contract for the supply of goods did not stand terminated when the goods were supplied and it continued in being till it was fully discharged by performance on both sides.
15. Undoubtedly, in the present case, there is a distinction in the governing facts as well as in the applicable provisions of law from those in issue before the Supreme Court in Jasani's case. The statutory provision which was construed by the Supreme Court in Jasani's case referred to "any share or interest in a contract for the supply of goods" and the question which arose before the Supreme Court, therefore, was as to whether the contract was terminated once goods had been supplied or whether it continued until payment was made - and the contract was fully discharged by performance on both sides. In the present case, the statutory provision is wider in the sense that it refers to a share or interest not merely in any contract with a Municipal Council, but in addition, a share or interest in any work done by order of a Council. The question as to whether the contract subsisted after the supply of goods and until payment was duly discharged by the Government, thus assumed importance in Jasani's case, because the share or interest which had to be established was "in a contract for the supply of goods". In the present case, unquestionably the contract has been terminated by the Contractor, the spouse of the elected candidate. The termination of the contract would, therefore, render the latter part of Section 16(1) (i) inapplicable. There being no contract which subsisted between the contractor and the Municipal Council, there would be no share or interest in a contract. That, however, is not dispositive of the question of disqualification for in the present case, Clause (i) of Sub-section (1) of Section 16 also covers the case where a person has directly or indirectly any share or interest in any work done by order of a Council. This provision is much wider than a share or interest in any contract. A Municipal Contractor may continue to have a share or interest in any work done by order of a Council even after the contract had been brought to an end, such as for instance, where he has a claim as in the present case, for payment due and outstanding in respect of work done under the contract. The first part of Clause (i) of Sub-section (1) of Section 16 will cover a case such as the present where the Municipal Contractor has an outstanding claim in respect of the work which was done by order of a Council. That claim constitutes for the purposes of Clause (i) an interest in any work done by order of a Council. In construing the "words "interest in any work done by order of a Council", the Court must effectuate the object of the legislature which was to prevent the kind of conflict between interest and duty that would arise, if a Municipal Contractor who had a claim against the Municipal Council in respect of work which was done for the Municipal Council, contests the election himself or if his spouse were to contest the election.
16. While construing the provisions of Section 9A of the Representation of the People Act, 1951, the Supreme Court held that if there is no subsisting contract on the date on which a candidate filed his nomination papers, the disqualification could not be attracted. In S. Munishamappa v. B. Venkatarayappa, , the Supreme Court held that even if the candidate had committed a breach of contract, the contract could not it said to subsist thereafter. The contract would be discharged by breach on the part of the candidate leaving the party aggrieved to take steps to recover damages for the breach. This principle was reiterated in Prakash Khandre v. Vijaya Kumar Khandre, 2002 AIR SCW 2499. That was again a case where the appellant before the Supreme Court had terminated the subsisting contract and the Department had accepted the termination. The Supreme Court held that the question as to whether a contract was subsisting or not is a question of fact to be determined from the evidence on record. Therefore, for the purposes of Section 9A of the Representation of the People Act, 1951, the Supreme Court held that once a contract has been terminated, the disqualification that has been provided by Section 9A would not be attracted even if the termination was occasioned by breach of the contract on the part of the elected candidate. The provisions of Section 16(1)(i) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 have been compared with Section 9A in the earlier part of the judgment. As already noted earlier, the disqualification which is contemplated in Section 16(1)(i) is on grounds which are significantly wider than in Section 9A. The disqualification arises not only when there is a subsisting contract but where a person has a share or interest in any work done by order of a Municipal Council.
17. In the present case, the husband of the elected candidate was a Municipal Contractor. In pursuance of several contracts that were entered into between him and the Municipal Council, work had been allotted to him. Several items of work were carried out by the Municipal Contractor, proximate in point of time to the filing of the nomination papers. The contractor terminated the contract on the date fixed for filing of nomination papers. That operated to bring to an end the subsistence of the contracts between him and the Municipal Council. He and his spouse continued to retain an interest in the work which had been performed by him under the orders of the Municipal Council in view of the fact that he had a claim far payments due and outstanding in respect of work which had been done. In fact, it was after his spouse was elected as President of the Municipal Council that the Council passed a resolution on 25th January 2002 authorising the making of payments to the contractor in accordance with bills which had been submitted by him. What happened subsequently on 25th January 2002 was merely reflective of the interest, which the elected candidate always had in respect of work which had been carried out under the order of the Municipal Council.
18. For the reasons as aforesaid, I am of the view that the elected candidate was in the facts of the present case not qualified to become a Councillor by virtue of the provisions of Section 16(1)(i) of the Act. For the aforesaid reasons, the conclusion of the Additional District Judge must be confirmed.
19. Having held that the elected candidate was not qualified under Section 16(1) (i), the Learned Trial Judge nevertheless dismissed the election, petition on the ground that an objection to the eligibility of the elected candidate who was eventually elected was not taken at the time of the scrutiny of the nomination papers. In view of the provisions of Rule 15(10) of the Rules framed under the Act, the Additional District Judge held that an estoppel operated against raising the objection in an election petition. In arriving at this conclusion and in dismissing the election petition, the Additional District Judge has clearly been in error. The point is not res integra and is squarely covered by the judgment of a Full Bench in Dattatraya Narhar Pitale v. Vibhakar Dinkar Gokhale, 1975 Mh.L.J.701. The Full Bench noted that under Section 21 of the Act, a specific right is conferred upon an elector or a voter to challenge the validity of the election, co-option or nomination of a Councillor. That section, it has been held, does not limit the ground on which the validity of such election, co-option or nomination can be challenged and it is open to an elector to challenge the validity of an election on any ground on which it can be challenged in law. A voter or an elector has no right to appear either before the Returning Officer or the District Judge hearing an appeal under Rule 15 while considering the question of acceptance or rejection of the nomination paper. Hence, it has been held that Rule 15(10) cannot be given such overriding effect as to take away completely the right of an elector or a voter to challenge the validity of an election, inter alia, on the ground of wrongful acceptance or rejection of the nomination paper of a candidate. The Full Bench held that tine rules framed under the Act cannot have the effect of cutting down or restricting the statutory right given to an elector of bringing in question an election under Section 15(1) of the Act. In view of the law laid down by the Full Bench, the Additional District Judge was clearly in error in rejecting the petition on the ground that no objection was raised to the acceptance of the nomination paper of the elected candidate.
20. Finally, one of the submissions which has been urged on behalf of the elected candidate is that the Petitioner in Writ Petition 7979 of 2003 was not a voter at all and was, therefore, not entitled to file or institute an election petition. Section 11 of the Act provides that the electoral roll of the Maharashtra, Legislative. Assembly prepared under the provisions of the Representation of the People Act, 1950 shall be divided by the State Election Commissioner into different sections corresponding to different wards in the municipal area and a printed copy so divided and authenticated by the State Election Commissioner shall be the list of voters for each ward. Section 12(1) provides that every person whose name is in the list of voters maintained under Section 11 shall be qualified to vote and every person whose name is not in such list shall not be qualified to vote. Sub-section (2) of Section 12 provides that the list of voters maintained under Section 11 shall be conclusive evidence for the purpose of determining under this section whether a person is qualified or is not qualified to vote. In the present case, it was sought to be urged that in the electoral roll the name of the voter was shown as Shivaji Krishna Balwante whereas his actual name is Shivaji Krishna Jangale. Hence, it was urged that Shivaji Krishna Jangale was not a voter in the electoral roll. In the present case, there is absolutely no dispute about the fact that the first name and the middle name of the voter corresponds to what has been reflected in the voters' list. The middle name in Maharashtra is the name of the father. The name of the father is also shown separately and corresponds to the actual name of the voter's father. There is no dispute about the fact that the residential address and the age of the voter nave been correctly shown. The last name of the voter was, however, incorrectly shown as Balwante instead of Jangale. In the course of his evidence, he stated that his name was Shivaji Krishna Jangale and that the reference to his name as Balwante in the electoral roll was a printing error. He stated that the surname of his wife, son and daughter-in-law had similarly been wrongly shown as Balwante and there was no person with the surname Balwante in the Sangola Constituency or in the Ward. He deposed that he himself, his wife, son and daughter-in-law had all cast their votes at the election; and that they were permitted to cast their votes after the electoral identity card had been verified. On the basis of the evidence, the Additional District Judge noted that the voter had produced the electoral identity card issued by the Election Commission, a certified extract of the land records, the assessment list of his residential house, as well as the school leaving certificate which established beyond doubt the identity of the voter. The first name of the voter and the name of his father as shown in the voters list was correct. The reference to Balwante as the Surname was only a printing error.
21. In affirming the correctness of this decision, the Court is fortified by the judgment of the Supreme court in Harikrishna Lal v. Babu Lal Marandi, . In that case, the nomination paper of the returned candidate mentioned his name as "Babu Lal Marandi". In the voters list his name was Babu Marandi. Mr.Justice R.C. Lahoti speaking for a Bench of two Learned Judges of the Supreme Court observed thus:
"It is well known that in the Indian Society the name of a person consists of the first name, the second name and the surname or the family name. The first name and the family name of the respondent tallied, the second name was mentioned in the nomination paper but was not found to be mentioned in the voters list. According to the plea taken in the written statement, all other descriptions such as the father's name, age, sex and residence etc, of the respondent as given in the voters' list and as appearing in the nomination paper tallied. There was thus no defect in the nomination paper."
The Supreme Court held that the omission of the second name "Lal" from the voters list was inadvertent or accidental or in any case merely technical. There was no doubt about the identity of the Respondent. In the present case, for the reasons already indicated, the Additional District Judge was correct in coming to the conclusion that the reference to the surname as Balwante was merely a printing or an inadvertent error. As in the case before the Supreme Court, there was absolutely no doubt about the identity of the voter. The first name, the name of the father, age, sex and residential address all tallied and were correct. The finding that he is a voter and is entitled to maintain an election petition does not therefore, warrant interference.
22. In view of the aforesaid discussion, I have come, to the conclusion that the elected candidate was not qualified to become a Councillor by virtue of the provisions of Section 16(1) ( i ) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. Having correctly come to the conclusion that the provisions of Section 16(1)(i) were attracted, the Additional District Judge erred in dismissing t-e election petitions on the ground that the objection as regards the validity of the nomination had not been raised before the Returning Officer and that an estoppel operated by virtue of the provisions of Rule 15(10). In the circumstances, I am of the view that the Petitioners before the Court in Writ Petitions 7949 of 2003 and 79/0 of 2003 must- succeed. The judgment and order dated 14th January 2003 of the Additional District Judge dismissing the election petitions (Election Petition Nos. 1 of 2001 and 1 of 2002) is quashed and set aside the election of the returned candidate is quashed and set aside. The Election Petitions shall stand allowed to that extent and in the aforesaid terms. Writ Petition 98(SIC) of 1993 filed by the returned candidate challenging the finding of the Additional District Judge that she was not qualified to contest the election in view of the provisions of Section 16(1)(i) shall, in the circumstances, stand dismissed.
23. All the Petitions shall stand disposed of in the aforesaid terms. In the circumstances, there shall be no order as costs.
24. On the request of Learned Counsel appearing on behalf of the elected candidate, the present judgment and order shall remain stayed for a period of four weeks in order to enable the candidate to espouse her remedies in appeal.
25. Parties be given copies of this order duly authenticated by the Personal Secretary of this Court.