Bombay High Court
Tanaji Appaso Ruikar And Anr vs Suresh (Bhau) Dagadu Khade on 25 February, 2020
Author: G. S. Patel
Bench: G.S. Patel
11-EP-20-19-J.DOC
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ELECTION PETITION NO. 20 OF 2019
WITH
APPLICATION (L) NO. 2 OF 2020
IN
ELECTION PETITION NO. 20 OF 2019
1. Tanaji Appaso Ruikar
Age 39 years, Occupation Agriculturist,
residing at Udgaonves, Mali Galli,
Taluka Miraj, District Sangli 416 410
2. Balaso Dattatray Honmore
Age 51 years, Occupation Agriculturist,
residing at Mallewadi, Taluka Miraj,
District Sangli 416 410 ...Petitioners
~ versus ~
Suresh (Bhau) Dagadu Khade
Age 61 years, Occupation Social Service/Business,
residing at "Das", Opposite Miraj City Police
Station, Taluka Miraj, District Sangli 416 410 ...Respondent
A PPEARANCES
FOR THE Mr MM Vashi, Senior Advocate, with
PETITIONER Ms Manisha Desai, i/b M P Vashi &
Associates
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FOR THE Mr ML Patil, with Mr Rupesh Lanjekar
RESPONDENT
/APPLICANT
CORAM: G.S. PATEL, J.
DATED: 25th February 2020
ORAL JUDGMENT:
1. Application (L) No. 2 of 2020 is by the Respondent to the Election Petition. It is framed as an application for rejection of the Election Petition under Order 7 Rule 11 (a) of the Code of Civil Procedure 1908 ("CPC") on the ground that the Election Petition makes out no case and discloses no cause of action, and that no triable issue arises. Specifcally, it is alleged that even taking the Petition as laid, the Election Petition does not disclose an electoral offence within the meaning of Section 123(2) of the Representation of the People Act 1951 ("RP Act"). Rejection is also sought under Section 83 of the RP Act.
2. First, as to the contents of these two Sections. Section 83 reads thus:
"83. Contents of petition.--
(1) An election petition--
(a) shall contain a concise statement of the material facts on which the petitioner relies;Page 2 of 38
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(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verifed in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verifcation of pleadings:
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an afdavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verifed in the same manner as the petition.
3. Section 123 has several components. It is an admitted position that we are concerned only with that portion of it that deals with 'undue infuence'. We are not concerned with the provisions, for instance, of sub-clause (1) relating to bribery, nor those of sub- sections 3(A) and 3(B). Section 123 and sub-section (2) with its proviso read thus:
"123. Corrupt practice.-- The following shall be deemed to be corrupt practices for the purposes of this Act:--
(1) ....
(2) Undue infuence, that is to say, any direct or indirect interference or attempt to interfere on the part of the Page 3 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:
Provided that--
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who--
(i) threatens any candidate or any elector, or any person in whom a candidate or an elector interested, with injury of any kind including social ostracism and ex-
communication or expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;
(b) a declaration of public policy, or a promise of publication, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause."
(Emphasis added) Page 4 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC
4. For completeness, this is Section 100 of the RP Act:
Section 100--Grounds for declaring election to be void (1) Subject to the provisions of sub-section (2) if the High court is of opinion--
(a) that on the date of his election a returned candidate was not qualifed, or was disqualifed, to be chosen to fll the seat under the Constitution or this Act3or the Government of Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially afected--
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or Page 5 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of2the High Court, a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice but the High Court is satisfed--
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;
(b) ***
(c) that the candidate and his election agent took
all reasonable means for preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void.
(Emphasis added)
5. The two Petitioners, aged respectively 39 and 51, challenge the election of the Respondent from the Maharashtra Legislative Assembly Constituency No 281-Miraj. This was a reserved Page 6 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC Scheduled Caste seat. The result was declared on 24th October 2019.
6. The tenure of the Maharashtra Legislative Assembly was to end on 9th November 2019. The Election Commission of India or ECI announced an election programme as follows:
a. Nomination to be fled between 20/9/2019 to 4/10/2019 b. Scrutiny of nomination paper to take place on 5/10/2019 c. Last date for withdrawal of nomination paper 7/10/2019 d. Date of election 21/10/2019 e. Declaration of election result on 24/10/2019.
7. The Petitioners and the Respondent all fled their nominations from this Constituency. While the nomination papers were being scrutinized, on 5th October 2019 both Petitioners objected in writing to an Afdavit fled by the Respondent in Form-
26. It seems that the Respondent had fled three nomination forms. The nomination paper of the 1st Petitioner was ultimately rejected. In their objection to the Respondent's Afdavit, the Petitioners said that the Respondent had wrongly included in the entry under 'educational qualifcation', a statement that he had a 'Doctorate of Honours (Social Work)' obtained in November 2012 from the Open International University, Colombo, Sri Lanka. The case of the Petitioners was that this was a bogus degree not recognized in India. The University Grants Commission in India has not acknowledged it. Therefore, it was the Petitioners' case that Respondent had furnished incorrect information. Before the Returning Ofcer, the Page 7 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC Respondent was given time to reply. In this reply, a copy of which is annexed to this Petition and to which I will return a little later, the Respondent said that he had done much social work for many years. This yeoman social service, according to the Petitioner, came to the attention of the Open University of Colombo, which considered it to be of 'the highest order' and worthy of recognition. For that reason, the Open University in Colombo conferred on the Respondent an admittedly honorary doctoral degree.
8. In his Afdavit, one that Mr Vashi for the Petitioners is at some pains to point out, the Respondent did not claim that the degree was an educational degree.
9. On hearing both sides, the Returning Ofcer held that he did not have the power to reject a nomination paper on the ground that the information in it was incorrect. He only had to see whether it was complete and all columns were flled in. Obviously, since the Respondent had fled three nomination papers only one could be taken forward. The other two were held to be inconsequential and therefore rejected.
10. Thus, in the electoral fray there remained the 2nd petitioner, the Respondent and fve other candidates. Elections were held on 21st October 2019. Its result was declared on 24th October 2019. The Respondent garnered 96,369 votes. The 2nd Petitioner came in second with 65,971 votes. The other fve candidates got far fewer votes. An independent candidate on whose electoral result Mr Patil lays curious emphasis as we shall presently see, one 'Professor Dr Page 8 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC Prashant Dnyaneshwar Gangavane (Sir)', garnered 671 votes (and probably lost his deposit).
11. According to the Petitioners, the name of the Respondent even on the nomination paper was shown as 'Dr Suresh (Bhau) Dagadu Khade'. This was also the manner in which the Respondent's name was shown on the Electronic Voting Machines or EVMs, on all posters, banners and in electoral publicity materials.
12. Paragraphs 10 to 13 of this Petition lay out the cause of action. They read thus:
"10. The petitioners state that from the aforesaid facts, it is clear that the respondent had given a wrong information in Form No.26, more particularly, regarding his educational qualifcation, the instructions given in clause 10 is perused, the same requires a candidate to give details of the school/university from which the educational course was completed by the candidate and thee year of the same. The petitioners state that if clause No.10 pertaining to the information regarding educational qualifcation, as disclosed by the respondent, is perused, it clearly gives an impression that the respondent had passed his SSC in the year 1975 and had thereafter completed his education course i.e. Doctorate of Honours (social worker) in November, 2012 from the Open International University, Colombo (Srilanka). Moreover, column No.11 of schedule "b", which is a summary of information given in column 1 to 10, is perused, it creates a false impression that the respondent has passed his SSC in March, 1975 from a primary school situate at Taluka Tasgaon, Secondary Education from Swami Vivekanand Shikshan Santha, Tasgaon and Page 9 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC Doctorate of Honours (Social Worker), 2012 from the open International University Colombo (Srilanka).
11. The petitioners state that the respondent has taken advantage by giving wrong information in the afdavit fled in Form No.26 and by disclosing in all election material that he is a "Doctor". The petitioners state that 60% to 70% of the voters of the said constituency come from rural area. Most of thee voters are labourers, farmers, farm workers, etc. As the respondent went on disclosing himself as a "Doctor" in the said election campaign, a wrong impression was created in the minds of the voters that the respondent is indeed a "Doctor".
In the reply fled by the respondent before the returning ofcer, the respondent has clearly admitted that the degree of the "Doctor" is not conferred on the respondent due to his educational qualifcation, but due to his social work. Thus, the respondent is guilty of commission of a corrupt practice i.e. of having created an undue infuence on the voters of the said constituency by giving a wrong information that he is a "Doctor". Therefore, the election of the respondent is liable to be set aside u/s. 100(1)(b) r/w. Section 123(2) of the said Act. The petitioners state that by giving wrong information regarding education qualifcation the respondent has directly or indirectly interfered or attempted to interfere with the free exercise of the electoral rights of the voters.
12. The petitioners state that in the alternative, the petitioners submit that the returning ofcer has wrongly accepted the nomination paper of the respondent by passing the order dated 5th October, 2019, as the respondent has not given correct details regarding his educational qualifcations, the respondent's nomination paper sufered from defect of substantial nature. It is Page 10 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC therefore just and proper that the order dated 5th October, 2019 be set aside and it be declared that the nomination paper of the respondent was wrongly accepted by the returning ofcer.
13. The petitioners state as stated hereinabove, the respondent has taken undue advantage of a wrong information given to the voters by describing himself ass "Doctor". A large number of voters were swayed in favour of the respondent due to false educational qualifcation shown by the respondent. Therefore, the result of the said election is materially afected."
(Emphasis added)
13. According to the Respondent none of these averments furnish any cause of action. It is not the case of the Petitioners that there is factually no such honorary doctoral degree ever conferred or that the Respondent made a false claim to having been conferred this honorary doctorate. The claim of the Petitioner, Mr Patil submits, is that the doctoral degree conferred is frstly, not recognized by in India especially by the University Grants Commission; and, secondly, it is not an 'educational qualifcation' and therefore could have found no place in the column relating to education qualifcations.
14. It is clear from the annexures to the Petition itself including the Form at page 30 that in sub-item 3 of Item 10 the Respondent did include this degree by saying 'Doctorate of Honours (Social Worker), November 2012, the open International University Colombo, Srilanka'.
Page 11 of 3825th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC Mr Vashi for the Petitioners would have it that the heading of the column reads:
'My educational qualifcations are as follows' The Respondent has included his other educational qualifcations, including his SSC. According to Mr Vashi, the Respondent seems to have jumped straight from his 10th standard SSC to a PhD with only a few minor educational qualifcations in between. But in any event the Colombo 'doctorate' for social work is by no stretch of the imagination an 'educational' degree.
15. Mr Vashi draws attention to the Afdavit that the Respondent fled before the Returning Ofcer, a copy of which is at Exhibit C at page 61. In particular, he emphasizes paragraph 3 of that Afdavit. I will reproduce both the original in Marathi at pages 61 to 62 and the translation provided at pages 65 to 66:
1) vtZnkj ;kauh R;kaP;k vtZ ifj 2 e/khy tkcnkj ;kaP;k MkWDVjsV ;k vkWuujh ¼ekukdhar½ inohckcr vk{ksi uksanfoys vkgsr] Eg.kwup R;kckcr tkcnkj ;kaps Eg.k.ks vls dh 2 fuoM.kqdhP;k vuq'kaxkus mesnokjkus /kkj.k djko;kps ik=rsckccr ts fud'k ?kkyqu Bsoysys vkgsr] R;k fud'kke/;s mesnokj /kkj.k djhr vlysY;k dks.kR;kgh "kS{kf.kd ik=rsckcrps fud'k ueqn d#u Bso.;kr vkysys ukghr] Eg.kwup vtZ ifj- 2 e/khy mifLFkr dsysyh rdzkj gh dk;|kus n[kyik= ns[khy jkfgysyh ukgh] Eg.kqup ;k izkFkfed dk;|kps rjrqnh[kkyh gjdr vtZ QsVkGyk tk.ks vko";d Bjrs-Page 12 of 38
25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC 3 oj ueqn ifjPNsnkrhy dFkukl o ekaMysY;k Hkqfedsl dks.kR;kgh izdkjs ck/kk u ;srk tkcnkj ;kaps vls gh dFku vkgs dh] tkcnkj ;kauh iznh?kZ o'kkZiklwu th fofo/k izdkjph lkekftd dkes vktoj dsysyh vkgsr- R;kph ;ks; rh nk[ky baVjuW"kuy vksiu ;qfuOgZjflVh] dksyacks ;k ;qfuOgZflVhus ? ksrysyh gksrh o ;k dsysY;k dkekps eqY;ekiugh dj.;kr vkysys gksrs o Eg.kwup tkcnkj ;kaps lkekftd dke gs mPpikrGhpss vlY;kps R;kauh fu'd'kZ dk<ysys gksrs o Eg.kwup ;k mPp IkkrGhP;k dkekph iz"kalk dj.kslkBh lnj baVjuW"kuy vksiu ;qfuOgZjflVh] dksyacks ;kauh R;kaps vf/kdkj e;kZnsr MkWDVjsV gh ekun inoh cgky dsysyh vkgs o Eg.kwup tkcnkj ;kauk ns.;kr vkysyh gh inoh R;kaP;k dks.kR;kgh "kS{kf.kd ik=rsP;k eqY;ekiukrwu ns.;kr vkysyh ulqu rh dsoG R;kauh dsysY;k Lkkekftd dkekckcr ¼lks"ky odZj½ Eg.kqu ns.;kr vkysyh vkgs- Eg.kqup oknklkBh i.k dcqy u djrk fuoM.kqd dk;|k e/khy dkgh "kS{kf.kd ik=rk iq.kZ dj.ksph vV ?kryh vkgs vls ekuys rjh baVjuW"kuy vksiu ;qfuOgZjflVh] dksyacks ;kaps dMwu tkcnkj ;kauk ns.;kr vkysyh inoh gh tkcnkj ;kaP;k "ks{kf.kd dkefxjhlkBh ns.;kr vkysyh uOgrh o ukgh- tkcnkj ;kapsdMwu dj.;kr vkysY;k lkekftd dkefXkjhckcr e;kZnhr Lo#ikr lnjph inoh iznku dj.;kr vkysyh vkgs-
4 tkcnkj ;kauh ?ksrysY;k f"k{k.kkrwu R;kauh iq.kZ dsysY;k f"k{k.kkckcrpk laiq.kZ ri"khy R;kauh vkiY;k mesnokjh vtkZr Li'Vi.ks uewn dsysyk vkgs- ;k "kS{kf.kd rif"kyke/;s tkcnkj ;kauh R;kauk tknkph "kS{kf.kd ik=rk Eg.kwu lks"ky odZj Eg.kwu baVjuW"kuy vksiu ;qfuOgZflVh] dksyacks gh inoh iznku dsY;kps R;kaps dMwu rlk Li'Vi.ks mYys[k ns[khy dsysyk Page 13 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC vkgs- ;k mYys[kkrwu vtZnkj ;kauh jktdh; Ons'kkiksVh vxj tkcnkj ;kauk fojks/k uksanfo.;klkBh Eg.kwu R;kpk okij dsY;kps Li'V gksr vkgs-
5- vls fLFkrhr MkWDVjsV lkj[kh ekun inoh gh "kS{kf.kd izfriwrhZlkBh ¼vWdMfed½ Eg.kwu baVjuW"kuy vksiu ;qfuOgZjflVh] dksyacks ;kapsdMwu ns.;kr vkyh ulysus o Eg.kwup tkcnkj ;kauh o'kkZuqo'kZs dsysY;k lkekftd dkekph iza"klk Eg.kwup fnysyh vlwu R;keqGs tkcnkj ;kauh eqG /kkj.k dsysY;k "kS{kf.kd ik=rse/;s dks.krhp Hkj ns[khy >kysyh ukgh-
6- fejt fo/kku lHkk ernkj la?kkrwu tks mesnokj fuoM.kwd y<fo.kkj vkgs] R;kph lkaifRrd ifjfLFkrh] xqUgsxkjh Lo:ikph R;akpsdMwu dkgh d`R;s dsyh vlY;kl o R;kcjkscjhus R;kaP;k vfFkZd ifjfLFkrhckcr o R;kcjkscjhus R;kaps f"k{k.kkckcrph iqjs"kh ekfgrh ernkj la?kkrhy ernkjkauk ernku dj.ksiwohZ miyC/k dsyh tk.ksP;k ,deso gsrwu lnjpk ri"khy ekxZn"kZd Bjkok Eg.kwu lknj dj.kspk gsrw lk/; dj.kslkBh lnjpk ri"khy tkcnkj lkj[;k mesnokjkauh lknj dj.ksps iz;kstu jkghys vkgs] Eg.kwup rks fuoM.kwdhps ik=rsps vuq'kaxkus eqyHkwr vlk ik=rslkBh fud'k d/khgh vlw "kdr uOgrk o ukgh-
7- egkjk'Vª "kklukdMwu fn- 23 es rs 29 es 2013 ;k dkyko/khlkBh izfl/n dj.;kr vkysY;k jkti=krwu tkcnkj ;kauk iznku jkfgysY;k MkWDVjsV ;k ekun inohph ;ksX; rh Nkuuh d:u n[ky ?ksryh vkgs o R;kuqlkj tkcnkj ;kaP;k ukoke/;s ;k ekun inohpk lekos"kgh dsysyk vkgs] R;keqGs ;k Page 14 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC jkti=kP;k izfl/nh iklwu tkcnkj gs ;k ekun inohpk vktoj okij djhr vkgsr-
8- Eg.kwup ts.ks d:u vkiys jktdh; LokFkZ lk/kusP;k ,deso bjk|kus vtZnkj ;kauh lnjph gjdr nk[ky dsyh vlY;kus rh izpyhr fuoM.kwd dk;Zi/nrhl vfHkizsr ulY;kus rh ld`r n"kZuh; QsVkG.;kr ;koh- v"kh uez fouarh vkgs-
TRANSLATION PROVIDED BY THE PETITIONER BEFORE THE RETURNING OFFICER, MIRAJ Shri Tanaji Appaso Ruikar and others ... Applicant Versus Dr. Sureshbhau Kahde ... Respondent "Reply of the Respondent regarding the objection taken by the Applicant No.1 and 2 for the candidature application as under:-
1. Applicants have raised an objection in Para 2 regarding the Doctorate Degree of the Respondent (Honorary), therefore the respondent states that
2. Pursuant to the eligibility criteria of the candidate regarding the election prescribed, there is no criteria about the educational qualifcation of the candidate. Therefore the objection raised in para-2 in the Application, as per Law is not recognizable, hence it is necessary as per the provisions of the under the act to reject the said objection application.
3. Without prejudice the rights and contention mentioned in the above statement and contention, the Page 15 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC Respondent states that Respondent has done the various type of social work from long years till date. The same has been taken into consideration by the International Open University, Colombo, and valuation of the said work was done. Respondent has made high level of the social work hence being the encouragement of the said work the said International Open University, Colombo within its own rights has given the doctorate honorary degree to the Respondent and the said degree given by the said university was not being given regarding the academic qualifcation, however same has been given for my social work. Therefore, not being agreed for the dispute however it is presumed that there is some terms about the educational qualifcation as per the Election Act, then the degree given by the International Open University has not been/is given on the basis of educational Qualifcation but it is for his social work.
4. The Respondent has mentioned the entire particulars about the educational qualifcation in his nomination papers. In the said column the respondent has clearly mentioned that the said degree has been given for my social work by the International Open University, Colombo. Thus the applicant being the political opposition, it is clear that the Applicant has oppose the Respondent.
5. In this situation, as the said Doctorate Honorary degree has been given by the International Open University, Colombo not for the academic qualifcation but for the social work done from years to year, therefore the Respondent has not relied on the any educational qualifcation originally acquired.
6. The candidate who is going to contest election from the Miraj Legislative Assembly Constituency, it is the only Page 16 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC object of the eligibility criteria of the election that to have particulars about his fnancial condition, criminal offences committed, his educational qualifcation to the voters in the constituency. Therefore the educational qualifcation shall not or never be the eligibility criteria for the said election.
7. In the Maharashtra Government Gazette published during the period from 23rd May to 29th May, 2013 the necessary reorganization has been taken about the honorary degree of Doctorate received by the Respondent. And accordingly in the name of Respondent the honorary degree is included. Thus from the date of publication of the same in the Gazette, the Respondent is using the same.
8. Thus to get the political beneft, the Applicant has raised this objection, same has not been excepted to the prevailing Election procedure, hence the said may be prima facie shall be rejected."
Miraj Sd/-
Date:- 05/10/2019 Advocate
16. These facts are not in themselves in disputes. The only question is whether, as Mr Vashi would have it, the insertion of this 'Doctorate' in the nomination form, and more particularly the prefxing of the Respondent's name with the honorifc 'Dr.' constitutes 'undue infuence' within the meaning of Section 123 (2) of the RP Act.
17. I will frst quickly dispatch Mr Patil's argument that the mere addition of 'Dr' has no consequence because the result itself provides a sort of res ipsa loquitur answer: there was indeed a Page 17 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC candidate who was not only a 'Doctor' but also a 'Professor'. In addition he claimed to have been called 'Sir'. He afxed both appellations -- Dr and Professor -- before his name and yet fared miserably at the hustings, gaining only 671 votes in all. If a person who was both a 'Professor' and a 'Doctor' -- and claimed a sufx 'Sir' to boot -- could not 'unduly infuence' voters, submits Mr Patil, then there is no reason to believe that the Respondent's adoption of the prefx could have had the slightest impact. I will take it that this argument is based more in rhetoric than in law and will therefore not trouble to return a fnding on it. I merely note it.
18. A more accurate question is whether the Respondent's use of 'Dr' and his specifying the honorary doctorate in social work from the International Open University, Colombo, in any way constitutes an electoral offence.
19. The other ground taken by Mr Vashi is that the nomination form was improperly accepted by the Returning Ofcer and this would result in the election being void or being liable to be declared void in view of the provisions of Section 100(1)(d)(i).
20. The real question is whether paragraphs 10 to 13 of the Petition can, in view of the legal position fairly be said to make out a case either under Section 123(2) of undue infuence or under Section 100. I imagine, logically, that it is the argument under Section 123(2) that needs to be addressed frst. An acceptance of a nomination form is improper or would be held to be improper only if it is frst determined that, in the facts of this case, there was no Page 18 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC possibility in law of the Respondent being allowed to include the appellation 'Dr.' before his name; i.e., that the inclusion of his honorary doctorate was somehow 'false'. It will have to be tested whether this kind of insertion or addition falls within the mischief of Section 123(2), and fundamentally whether it interferes with the free exercise of any electoral right.
21. Before I proceed to a consideration of this, a few factual aspects of this litigation should be noted. I issued a summons on 3rd December 2019. On 7th January 2020, I noted that the Respondent had fled this Interim Application under Order 7 Rule 11 of the Code of Civil Procedure 1908 ("CPC"). I said then that I believed the Interim Application would have to be heard with main Petition and I passed that order. The Respondent approached the Supreme Court, which stayed the operation of the 7th January 2020 order. Before me both sides agreed that the Supreme Court did not stay the hearing of the Petition or the hearing of the Interim Application but merely the order of 7th January 2020, i.e. the clubbing of the Interim Application with the main Petition. On 4th February 2020 when I was shown this Supreme Court order, I indicated that I was prepared to proceed with the hearing of the Order 7 Rule 11 application frst. Mr Patil immediately agreed but only sought time to prepare for his arguments. It is in these circumstances that I heard both sides on the Order 7 Rule 11 Application on 21st February 2020.
22. I may also note that while Mr Vashi has made a categorical statement that he does not propose to lead evidence in support of his case, Mr Patil has no such instructions in regard to the Page 19 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC Respondent's case. His limited instructions are to press the Application under Order 7 Rule 11.
23. Mr Patil invites my attention frst to a reported decision of a learned Single Judge of this Court in Sanjeev Ganesh Naik v Vijay Lakman Chougale.1 The respondent in that case fled a writ petition for a direction to the Returning Ofcer to delete the prefx 'Dr.' from the name of the applicant (respondent No. 6 to the petition). It was contended that the assertion that the candidate was a 'doctor' was false and that this was done to unduly infuence voters. After the elections were held, the respondent before the Court fled an Election Petition saying that the applicant had dishonestly prefxed the word 'Dr.' before his name to induce voters. The applicant had no special knowledge but had obtained a doctoral degree from a foreign body by virtue of his post as the Mayor of the Navi Mumbai Municipal Corporation. In other words, this was no educational qualifcation. The contention before the learned Single Judge was that the applicant had unduly infuenced the free exercise of the electoral right of voters by projecting himself as a doctor. The applicant moved under Order 7 Rule 11 much as the present Respondent, Khade, before me does. In the case before the learned Single Judge, the applicant, Naik, canvassed the argument that the addition of the word 'Dr.' before his name did not constitute a corrupt practice within the meaning of Section 123(2). Paragraph 6 of that decision sets out the contention of the applicant:
"6. Shri Datar, the learned Counsel appearing on behalf of the Applicant submitted that the allegations made in para 15 of the Petition that, the Applicant, by 1 (2011) 6 Bom CR 243 : 2011 SCC Online Bom 759.Page 20 of 38
25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC using the word "Dr." before his name, had unduly infuenced the voters and, therefore, had committed corrupt practice, did not fall within the defnition of the word "corrupt practice" as defned under section 123(2). It was submitted that the word "undue infuence"
is not defned and, as such, the allegations made were not covered by the provisions of section 123(2). It was then submitted that under section 100, the grounds for declaring the election to be void were mentioned and under sub-clause (d) it had to be shown that the result of the election had been materially afected by any corrupt practice committed in the interest of the returned candidate. It was submitted that there were no averments in the Petition as to how the result of the election was materially affected as a result of the said corrupt practice. Secondly, it was submitted that the Respondent herein i.e Petitioner in the Election Petition had not pleaded material facts and had not given material particulars about the corrupt practice. Lastly, it was submitted that under section 83(3), an afdavit had to be fled in support of the Election Petition. It was submitted that though such an afdavit was fled, the said afdavit also lacked material facts and material particulars about the corrupt practice. In support of the said submission, the learned Counsel appearing on behalf of the applicant relied on paras 5, 9, 14, 17, 18, 28, 29, 32 and 33 of the judgment of the learned Single Judge of this Court in Ashok Mahadeorao Mankar vs Rajendra Bhausaheb Mulak (2010 (5) Bom CR 104 [Nagpur Bench]) and also another judgment of the learned Single Judge of this Court in Singh Shamsher Rambahal vs Election Commissioner & Ors. [(2011) 1 Mh LJ 620]"
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24. Mr Patil adopts this submission in toto as his own today. The opposition from the original petitioner in the case before the learned Single Judge was that the defnition of 'undue infuence' is not exhaustive. It was submitted that the prefxing of the honorary degree would 'undoubtedly misguide voters into believing that the electoral candidate was a worthy choice' because, after all, he had attained such a high position. The learned Single Judge considered the interpretation of the expression undue infuence at some length:
"11. The word "undue infuence" has not been defned in the said Act. Sub-section (2) also does not in terms defne the said term bur merely states that "any direct or indirect interference or attempt to interfere..........with the free exercise of any electoral right". Sub-section (2), therefore, if a plain meaning is given to the said provision, refers to any direct or indirect interference or even attempt to interfere with the free exercise of any electoral right. After defning the said corrupt practice and without prejudice to the said general defnition, two specifc instances have been mentioned in Sub-section (2)(a)(i) and (ii). Sub-section (2)
(a) (i) refers to threat and Sub-section (2)(a)(ii) refers to any inducement or even attempt to induce. Both, threat and inducement is further elaborated in the said proviso.
12. On a plain reading of the said provision, therefore, it is clear that a very wide meaning is conferred on the said provision and it also clarifes that apart from wide defnition of the word "undue infuence" which is given in sub-section (2), other instances referred to in sub-
section (2)(a)(i) and (ii) would also be included within the said defnition of the word "undue infuence". Therefore, it has to be seen whether the allegation in the petition falls within either wide defnition which is given in Page 22 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC sub-section (2) or within specifc instances which are mentioned in sub-section (2)(a)(i) and (ii).
13. The word "undue infuence" has been defned in Advanced Law Lexicon 3rd Edition, 2007 Vol.4 as under:-
"A contract is said too be used by 'undue infuence' where the relations subsisting between the parties is in a position to dominate will the other and uses that position to obtain an unfair advantage over the other."
[Indian Contract Act (9 of 1872), S.16(1)."] The word "undue" when qualifying 'infuence' has a legal meaning of 'wrongful' as opposed to, 'excessive', inordinate or disproportionate'. Undue infuence is understood to be held, when it overpowers the will without convincing the judgment. It is a grip on another's mind subjugating his will to that of the other. It is an infuence which acts to the injury of a person, who is swayed by it, and is exerted by exercising an ascendancy or power, which results in a person being impelled or compelled to do what he would not have done, if he had been an free agent Karnal Distillery Co Ltd v Ladli Prasad Jaiswal, AIR 1958 Pun 190, 203. (Indian Contract Act 9 of 1872), S.16)"
A declaration of public policy or promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section. (Election Offences and Enquiries Act, S. 2)"Page 23 of 38
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14. The Apex Court in Sterling General Insurance Co. Ltd vs Planters Airways Pvt Ltd [(1975) 1 SCC 603 : AIR 1975 SC 415] (at page 419) has observed in para 14 of its judgment as under:--2 "14. Therefore, we will have to take a liberal view of the meaning of the words "undue hardship". "Undue" must mean something which is not merited by the conduct of the claimant or is very much disproportionate to it."
15. Black's Law Dictionary has defned "undue infuence" as the improper use of power or trust in a way that deprives a person of free will and substitutes another's objective. When at the turn of the twentieth century, the common law doctrine of duress was expanded to provide relief for coercion irrespective of the means of coercion, much of the work of undue infuence became unnecessary. The doctrine has a much more specialized role today, although often enough the precedents decided when the more general doctrine prevailed are cited and quote to the general confusion of the profession. Today the gist of the doctrine is unfair persuasion rather than coercion. Euphoria rather than fear is often, but certainly not always, the state of mind of the party unduly infuenced.
16. In the present case, therefore, by mere use of the word "Dr." which is used as a prefx, cannot be said to overpower the will of the electorate in voting in favour of that candidate. In an election, a candidate is expected to infuence the voters to vote in his favour. It is only when the "undue infuence" is used which has an efect of 2 The SCC Online Report incorrectly has an incorrect citation referencing a 2004 decision. I have made the necessary correction in this extract.
Page 24 of 3825th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC overpowering the will, it would fall within the ambit of corrupt practice as defned under section 123(2).
13. The question, therefore, which has to be asked in this case is : whether by using the prefx "Dr." to his name, the applicant had deprived the electorates of free will and thereby were persuaded to vote in favour of the applicant? The answer will have to be in the negative.
(Emphasis added)
25. Then the Court proceeded to hold that the mere use of that word as a prefx could not be said to be one that would overpower the will of the electorate or to fall within the ambit of the corrupt practice of undue infuence. In paragraphs 21 to 23, the learned single Judge said:
21. It will also be proftable to take into consideration the observations made by the Apex Court in Naresh Charan Das Gupta v Paresh Charan Das Gupta, 1954 DGLS (soft) 166 : AIR 1955 SC 363. Though the said judgment was given in an appeal arising out of the application fled by respondent No. 1 for probate of a Will, the Apex Court considered the meaning of the expression "undue infuence" and, in that context, the observations made by the Apex Court in the said judgment in para 10 would be relevant, which read as under:--
"10 It is elementary law that it is not every infuence which is brought to bear on a testator that can be characterised as "undue".
It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour. And if the testator retains his mental capacity, and there is no Page 25 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC element of fraud or coercion - it has often been observed that undue infuence may in the last analysis be brought under one or the other of these two categories - the will can not be attacked on the ground of undue infuence. The law was thus stated by Lord Penzance in Hall v Hall, (1868) 1 P & D 481 at p. 482 (C):
"But all infuences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, -- these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, -- these, if carried to a degree in which the free play of the testator's judgment, discretion, or wishes is overborne, will constitute undue infuence, though no force is Page 26 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC either used or threatened. In a word, a testator may be led, but not driven; and his will must be the offspring of his own volition and not the record of some one else's".
..........."
22. The Constitution Bench of the Supreme Court had an occasion to consider the meaning of the term "undue infuence" as defned under the Presidential and Vice 20 (AEP2.2011) Presidential Elections Act (1952) in Baburao Patel v Dr Zakir Hussain, 1967 DGLS (soft) 300 : A.I.R. 1968 SC 904. However, section 18 of the said Act specifcally laid down that "undue infuence" would have the same meaning as in Chapter IX-A of the Penal Code, 1860 and section 171-C. While examining the said question, the Apex Court also took into consideration the provisions of section 123(2) of the Representation of the People Act (1951) and observed in para 18 that defnition in the said Act was more or less in the same language as in section 171-C of the Penal Code, 1860, the only exception being that the words "direct or indirect" had been added to indicate the nature of interference and, therefore, the Apex Court went on to observe that defnition of "undue infuence" in the Representation of the People Act may be wider than the defnition of the same term under section 171-C of the Penal Code, 1860. In this context, the Apex Court referred to cases under the election law to see how the Election Tribunal had considered this aspect while examining the scope of the word "undue infuence". However, all the cases which were referred to, were pertaining to cases where the Ministers had canvassed for their candidates and it was observed that such canvassing does not amount to undue infuence but it was a proper use of the Ministers' Page 27 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC right to ask the public to support the candidates belonging to the Ministers' party.
23. Keeping in view the observations made by the Apex Court, it will have to be examined whether the allegation made in this case would fall under the wide defnition of the word "undue infuence". Even if the defnition is wide, it encompasses situations of any direct or indirect interference or attempt to interfere with the free exercise of any electoral right. In my view, describing a person as "Dr." would not by any stretch of imagination fall within the ambit of this defnition, even assuming that the allegation made in the present petition is accepted. The learned Counsel appearing on behalf of the petitioner in Election petition vehemently urged that by doing so the respondent i.e. applicant herein had represented to the voters that he was having good educational qualifcation and, therefore, was competent to represent them and, therefore, had interfered with the free exercise of any electoral right. This submission in my view, cannot be accepted. It is alleged that the returned candidate had distributed pamphlets in which he has described himself as "Dr." which degree, according to the petitioner was not conferred by any recognized authority. Even if the said allegation is accepted, merely describing oneself as a "Dr." would not tend to be an act which would interfere with the free exercise of any electoral right and, therefore, in my view, the said allegation of addition a prefx "Dr." to the name of the returned candidate would not fall within the defnition of section 123(2). Admittedly, there is no provision in the Act which suggest that such an act is prohibited under the statute or amounts to disqualifcation within the meaning of section 100. ... ... ...
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26. This decision was delivered on 23rd June 2011. It is by a Bench of coordinate strength of this Court and therefore it binds me. It is not shown to be per incuriam. Mr Vashi urges that this decision is no longer good law. He canvasses the argument that the interpretation by the learned Single Judge was far too narrow because Section 123(2) does not speak only of a direct exercise of undue infuence but also of an indirect undue infuence. He says this aspect was never considered in Naik v Chougale. On this, I must disagree. The entire discussion by Kanade J in Naik v Chougule was precisely and only on the aspect of an 'indirect' infuence, i.e. the infuence of the prefx 'Dr.'.
27. Mr Vashi relies on the decision of the Supreme Court in Krishnamoorthy v Sivakumar And Ors.3 That was also under the RP Act. It specifcally addressed the question of undue infuence, although in the context of a non-disclosure in entirety of the criminal antecedents of a candidate. Admittedly, we are at some remove from the facts in that case. The only question is whether Krishnamoorthy and its interpretation of 'indirect undue infuence' can be extended to a case such as the one at hand where a person includes some expression before or after his name by which he portrays that he has some higher qualifcation. In fact, the mere use of the word 'Dr' in this case may not be very material in the sense that, as I understand it, Mr Vashi's argument would have remained much the same had the Respondent appended the letters "Ph.D." after his name. His argument is more fundamental: that what the Respondent claims to have is in no sense an 'educational' qualifcation. He may have been conferred a such an degree. It may 3 (2015) 3 SCC 467.
Page 29 of 3825th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC be an honorary conferment. But it is most certainly not the result of any academic endeavours on his part and is therefore is not an educational 'qualifcation'. If, he submits, it is not an 'educational qualifcation', then it could not have been entered in column 10 of the nomination form. Inserting it in that form was entirely unnecessary and perhaps even illogical. Its inclusion, Mr Vashi says, was thus clearly intended for one purpose only -- to vaunt the Respondent to a higher position in the eyes of the voting public. That, in his construct, constitutes undue infuence. It may not be direct. It may be indirect. But that makes no difference at all in the eyes of the law. In support of this, Mr Vashi draws my attention to paragraphs 11, 12 and 32 of Krishnamoorthy. Paragraph 11 sets the background in the context of the agreements canvassed before the Supreme Court. After addressing the history of disclosures required in election matters, the Supreme Court turned to the underlying imperative for not only a complete disclosure but an accurate disclosure. Throughout, that entire discussion was in the context of criminalisation of politics. The Supreme Court held that not disclosing relevant criminal antecedents does 'indirectly unduly infuence' an electorate because it keeps from the electorate important information that might, on a fair disclosure, have persuaded it, viz., the electorate, to vote against that particular candidate. This is the reason why paragraph 38 of Krishnamoorthy speaks of misinformation, denial of information and a foundational precept of a voters' exercise of choice and free will. Anything that even tends to take away that choice and free will is, therefore, in Mr Vashi's formulation, a corrupt electoral practice and amounts to ndue infuence.
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28. Mr Vashi also cites the Supreme Court decision in Mairembam Prithviraj & Ors v Pukhrem Sharatchandra Singh & Ors. 4 This was the case of a false declaration and a rejection of a nomination. The falsity was said to be in regard to an educational qualifcation. The Returning Ofcer demanded proof of the educational qualifcation claimed. The appellant failed to produce documentary proof. Despite this, the Returning Ofcer accepted the nomination. Polling took place. The appellant secured more votes than the respondents and was declared elected. That election was thus challenged and paragraph 5 tells us the factual matrix. In Form 26, the appellant said he was an MBA from Mysore University in 2004. After a consideration of the material, the High Court had concluded that this declaration was false. The appellant said that the defect in Form 26 was 'merely a clerical error'. On facts, the result was even slightly comical. Far from having any MBA at all, whether from Mysore University or anywhere else, the appellant fnally agreed that he had no such degree. He did not study for a MBA course at Mysore University. He said this reference to Mysore University was 'the clerical error'. He said that he had always thought of doing an MBA by correspondence from Mysore University. But he actually did not do the course, either by correspondence or in person. I am of course unable to see how this could ever have been a clerical error and paragraph 17 of the Supreme Court judgment will undoubtedly have to be viewed in this light. I will reproduce the whole of that paragraph, with paragraphs 18 and 19:
4 (2017) 2 SCC 487 : AIR 2016 SCC 5087.Page 31 of 38
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17. It is clear from the law laid down by this Court as stated above that every voter has a fundamental right to know about the educational qualifcation of a candidate. It is also clear from the provisions of the Act, the Rules and Form 26 that there is a duty cast on the candidates to give correct information about their educational qualifcations. It is not in dispute that the appellant did not study MBA in the Mysore University. It is the case of the appellant that reference to MBA from Mysore University was a clerical error. It was contended by the appellant that he always thought of doing MBA by correspondence course from Mysore University. But, actually he did not do the course. The question which has to be decided is whether the declaration given by him in Form 26 would amount to a defect of substantial nature warranting rejection of his nomination.
18. Section 36(4) of the Act mandates that the Returning Ofcer shall not reject a nomination paper on the ground of any defect which is not of a substantial character. The declaration made by the appellant in Form 26, fled in 2012 is not a clerical error as contended by him. The appellant contested election to the same constituency in 2008 and in the afdavit fled by him in Form 26 he declared that he passed MBA from Mysore University in 2004. In the afdavit fled by him in this election petition by way of examination-in-chief, the appellant stated that his nomination paper and the enclosed afdavit were prepared and fled by his counsel Chakpam Bimolchandra Singh on the instructions of his agent Ph. Shamu Singh. He also stated that his counsel flled the prescribed afdavit in his own handwriting. The appellant also stated that he signed the afdavit without reading the contents and he came to know about the error only when the respondent raised his objection to the nomination. The appellant further stated that he was working in Projeon, Infosys Company and IBM till 2007 Page 32 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC and because of his job many local friends and elders thought that he was an MBA degree-holder. His election agent also thought that he was holding an MBA degree due to which he instructed Advocate Chakpam Bimolchandra Singh to fll up Column 9 of the afdavit by stating that the appellant is an MBA degree- holder. In his cross-examination, the appellant gave evasive replies to the questions relating to his educational qualifcation. He stated that he does not remember whether he had undergone MBA from Mysore University and he does not remember whether he possesses MBA degree. Chakpam Bimolchandra Singh who was examined as DW 3 in his cross-examination denied having flled up the entries in Form 26. He stated that he entered the educational qualifcations of the appellant on the basis of instructions given by the election agent Shamu Singh. He also stated that he was not present before the Oath Commissioner when the appellant signed the afdavit.
19. The contention of the appellant that the declaration relating to his educational qualifcation in the afdavit is a clerical error cannot be accepted. It is not an error committed once. Since 2008, the appellant was making the statement that he has an MBA degree. The information provided by him in the afdavit fled in Form 26 would amount to a false declaration. The said false declaration cannot be said to be a defect which is not substantial. He was given an opportunity by the Returning Ofcer to produce the relevant document in support of his declaration. At least at that point of time he should have informed the Returning Ofcer that an error crept into the declaration. He did not do so. The false declaration relating to his educational qualifcation cannot be stated to be not of a substantial character. It is no more res integra that every candidate has to disclose his educational qualifcation to subserve the right to information of the voter. Having made a false declaration Page 33 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC relating to his educational qualifcation, the appellant cannot be permitted to contend that the declaration is not of a substantial character. For the reasons stated supra, we uphold the fndings recorded by the High Court that the false declaration relating to the educational qualifcation made by the appellant is substantial in nature.
(Emphasis added)
29. As the emphasized words show, the Supreme Court found the appellant to be entirely unreliable as a witness in regard to his own nomination form. On a review of the law the Supreme Court said that every voter has a right to know about the educational qualifcations of the candidate. What the Supreme Court rejected was the contention that the total misstatement of having a degree at all was a clerical error.
30. Now this case is perhaps directly in opposition on facts to the case before me at least in one respect. As I noted at the beginning, there is no challenge to the fact that the Respondent has indeed been conferred an honorary doctorate. The Petition does not mount any such challenge. It only says that the doctorate is not recognised in India and it is not an educational qualifcation. This is very different from Prithviraj where the candidate did not have a MBA at all but was only dreaming of one, or was presumed by his peers to have one. Paragraph 18 of Prithviraj thus rejected the argument that the falsity in Form 26 could be attributed to a clerical error. I am unable to see how either this or Krishnamoorthy is any way at odds with the principle propounded so clearly by Kanade J in Naik v Page 34 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC Chougale. That decision seems to me on facts to be much closer at hand.
31. Mr Vashi then draws my attention to a recent decision of a learned Single Judge of the Delhi High Court in Nand Kishore Garg v Jitender Singh Tomar & Ors.5 Mr Vashi has taken me through several paragraphs of this decision. There again, one of the claims made was of a false information regarding an educational qualifcation. This time the claim was to being a graduate in law. I am actually not concerned with cases where the claim is said to be false but only with a case whether the claim, though true, is said to be improper only because it is not an educational qualifcation. Prithviraj and Nand Kishore Garg are cases where the returned candidate did not posses the educational qualifcation in question at all. As Rajiv Sahai Endlaw J noted in Nand Kishore Garg, the claim of the respondent was found to be false: he had no such educational qualifcation at all. The Court held that it was unequivocally established that the respondent had falsely claimed to have graduated from Avadh University and on that basis to have been admitted to a three-year LLB programme. The fact that he subsequently got a recognition from the Bar Council was held to be inconsequential to this aspect of the matter. From paragraph 47 onwards the learned Single Judge turned to a question of examination of law of this false statement. The paragraphs of Nand Kishore Garg on which Mr Vashi relies address the question of whether a candidate does indeed have that degree or not as a matter of proof and fact, but not whether, when that degree or qualifcation 5 2020 SCC OnLine Del 208, per Rajiv Sahai Endlaw J.
Page 35 of 3825th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC is undisputed, it could be included in a list of educational qualifcations.
32. Thus, all three cases on which Mr Vashi relies as precedent, are positioned quite differently on facts. The nomination Form itself does not indicate any other place in which the Respondent could have included this qualifcation. It is not also in dispute that what the Respondent laid claim to was the conferment of a honorary degree from an Open International University. It is difcult to see from this inclusion how it can be said that this is an electoral malpractice.
33. There is one line in paragraph 13 of which I must make special note. At the cost of repetition I will reproduce the whole of that paragraph again:
13. The petitioners state as stated hereinabove, the respondent has taken undue advantage of a wrong information given to the voters by describing himself ass "Doctor". A large number of voters were swayed in favour of the respondent due to false educational qualifcation shown by the respondent. Therefore, the result of the said election is materially affected."
(Emphasis added)
34. The second sentence of this paragraph is clearly an assertion of fact. This is not demonstrated in the least. This is where Mr Vashi's categorical statement on instructions that the Petitioners propose to lead no evidence assumes signal importance. In other words, the Petitioners before me have neither the willingness nor Page 36 of 38 25th February 2020 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 23/03/2020 23:27:56 ::: 11-EP-20-19-J.DOC the ability to prove the correctness of this factual assertion -- viz., that a large number of voters were indeed swayed by the Respondent's mention of his honorary doctorate. This is not something to which any presumption attaches. This is a question of fact. It must be proved. Giving up the proof it takes it out of the equation completely, and makes it entirely irrelevant; and thus no triable issue arises.6 We then have to see the rest of the Petition as on a demurrer, to see whether it discloses any cause of action. In the words of a learned single Judge of this Court, AS Chandurkar J and specifcally in the context of an Order VII Rule 11(a) application in an Election Petition, "it is only the averments in the Election Petition that are required to be considered." 7 Adopting this approach, it is at once seen that absolutely no triable issue arises, for the reasons set out above. The Petitioners have proceeded on the basis that the admitted documents (the nomination Form and the Respondent's Afdavit before the Returning Ofcer) are sufcient in law. I have found they are not, and on those documents no electoral malpractice of undue infuence is made out. The Petitioners have reiterated their stand that they will not be leading evidence. Hence, no issue arises that can possibly be said to be triable.
35. The Interim Application under Order 7 Rule 11 must succeed.
36. The Application under Order 7 Rule 11 of the CPC is made absolute in terms of prayer clause (a). The Petition is rejected under Order 7 Rule 11 of the CPC.
6 See: Mohan v Bhairon Singh Shekhawat, (1996) 7 SCC 679. 7 Manohar v Election Commission of India, 2020 SCC OnLine Bom 230.
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37. The Petition is dismissed under Section 98(a) of the RP Act. Consequently, the Respondent, being the returned candidate, is entitled to costs he has incurred in contesting the Petition. There will be an order of costs in the Respondent's favour, and these costs are to be recovered in the manner set out in Section 119 of the RP Act.
38. The Registrar ( Judicial-I) will forward an authenticated copy of this order to the Chief Election Commissioner and Maharashtra Legislative Assembly in compliance with the provisions of Section 103 and relevant High Court Rules.
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