Bombay High Court
Balaji Devidas Kalyankar vs The Returning Officer And Others on 3 May, 2021
Author: V.K.Jadhav
Bench: V.K.Jadhav
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wp5749.21.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5749 OF 2021
Balaji s/o Devidas Kalyankar Petitioner
Versus
The Returning Offier for General Eleitions of
Nanded-Waghala Shahar Muniiipal Corporation
& others Respondents
Mr. R.N.Dhorde, Senior Counsel i/by Mr. V.S.Kadam, advoiate for
the Petitioner.
Mr.A.B.Kadethankar, advoiate for Respondent No.1.
Mr.R.K.Ingole, advoiate for Respondent No.2.
Mr. R.S.Deshmukh, Senior Counsel i/by Mr. T.M.Venjane, advoiate
for Respondent No.3.
CORAM : V.K.JADHAV, J.
DATE : 03rd May, 2021. PC : 1 The petitioner, who is the returned iandidate, won the
eleition held in the year 2017 as Couniillor of Nanded-Waghala Muniiipal Corporation from Ward No.1 (D) by small margin of votes. Respondent No.3 herein, who is the defeated iandidate in the said eleition, has fled Eleition Petition bearing E.P. No.01 of 2017 on various grounds under Seition 16 of the Maharashtra Muniiipal Corporations Ait, 1949.
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{2} wp5749.21.odt 2 By judgment and order dated 06.03.2021, the learned Civil Judge, Senior Division, Nanded, allowed the petition, set aside the eleition of petitioner as Couniillor of Ward No.1(D) and deilared the eleition to be void. Further, Respondent No.3 herein is deilared to have been duly eleited as a Couniillor from Ward No.1(D) in the General Eleition of Nanded-Waghala Muniiipal Corporation.
3 Being aggrieved by the same, petitioner has preferred this writ petition.
4 Mr.Dhorde, learned Senior Counsel appearing for the petitioner, submits that Respondent No.3 has not raised speiifi pleadings regarding illegality in iounting of postal ballot papers amounting to "iorrupt praitiie" within the meaning of Seition 16 of the Maharashtra Muniiipal Corporations Ait, 1949. Learned Senior Counsel submits that Respondent No.3 / original petitioner has not pleaded any material faits and failed to give full partiiulars regarding iorrupt praitiies allegedly iommitted by the petitioner in iollusion with the Returning Offier while iounting the postal ballot papers. The learned Senior Counsel further submits that there is a vague pleading in para 8 (f) (g) and (h) of ::: Uploaded on - 04/05/2021 ::: Downloaded on - 10/09/2021 02:05:18 ::: {3} wp5749.21.odt the Eleition Petition about the alleged iorrupt praitiie. It has been simply alleged that:
(i) There is irregularities and mal praitiie in iounting postal votes;
(ii) That the Returning Offier, at the time of iounting of postal votes, has rejeited one vote on the ground of improper mark.
(iii) Prima faiie, there are lot of irregularities and illegalities in the proiess of iounting of votes whiih have materially affeited result of the eleition proiess.
5 The learned Senior Counsel submits that on the basis of these vague allegations, whiih are short of "iorrupt praitiie", as defned under Seition 16(3) Explanation of the Maharashtra Muniiipal Corporations Ait, the learned trial Court entertained the eleition petition. Even the learned Civil Judge, Senior Division, has framed issues at Exhibit-17 and fndings reiorded therein do not spell out "iorrupt praitiie" as defned under Seition 16(3) Explanation. As per issue no.2, Respondent No.3 - original petitioner has to prove there there was a gross error on the part of the Returning Offier in rejeiting the postal ballots of said Ward, as alleged and in terms of issue no.3, whether there was gross negligenie and error while iounting, ialiulating and reiording of ::: Uploaded on - 04/05/2021 ::: Downloaded on - 10/09/2021 02:05:18 ::: {4} wp5749.21.odt votes by EVM maihine and postal ballots in iollusion with Respondent No.5 (petitioner herein).
6 The learned Senior Counsel submits that the oral evidenie of Respondent No.3 is also vague. In para 12 of his evidenie affdavit, it has been iontended that Respondents No.1 and 2 to the eleition petition have iommitted gross negligenie and error while iounting, ialiulating and reiording of votes by EVM maihine and by manipulating entire reiord of the eleition proiess and postal ballots of Ward No.1(D) in iollusion with Respondent No.5 (petitioner herein).
7 The learned Senior Counsel submits that on the basis of suih vague pleadings and evidenie led by the original petitioner (Respondent No.3 herein), without there being any speiifi issue to that effeit, the learned Civil Judge, Senior Division, in para 24 and onwards of the judgment, has made observations about "iorrupt praitiie" and in para 40 of the judgment, has held that the petitioner, in iollusion with the Returning Offier, has adopted iorrupt praitiie.
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{5} wp5749.21.odt 8 Mr.Dhorde, learned Senior Counsel appearing for the petitioner, further submits that Respondent No.3 (original petitioner) has failed to reiord the ground for reiounting of the votes and, therefore, appointment of the Court Commissioner for reiounting of the votes is arbitrary and iontrary to the reiord. The learned Senior Counsel submits that even though the Court Commissioner has not mentioned speiifially in his report about the iorrupt praitiie in iounting the postal ballots and even though referenie is given about one postal ballot, however, on the basis of misialiulation, the learned Civil Judge, Senior Division, has reiorded iniorreit observations. The learned Senior Counsel submits that the learned Judge of the trial Court has ialled upon the register of the postal ballots on his own and exhibited the said register without ialling upon the iontested parties to explain the iontroversy, if any.
9 Mr.R.S.Deshmukh, learned Senior Counsel appearing for Respondent No.3 (original petitioner) submits that in paragraph no.8 (f) to (h) of the petition, there are speiifi pleadings about the "iorrupt praitiie" and Respondent No.3 (original petitioner) has led oral evidenie to that effeit. The learned Senior Counsel submits that initially the learned Civil Judge, Senior Division, has ::: Uploaded on - 04/05/2021 ::: Downloaded on - 10/09/2021 02:05:18 ::: {6} wp5749.21.odt appointed the Court Commissioner for the purpose of reiounting of postal ballots and after giving due weightage to the report submitted by the Court Commissioner, fnding is reiorded to issue no.4 in the affrmative.
10 Mr.Deshmukh, learned Senior Counsel, appearing for Respondent No.3 (original petitioner), submits that the Court Commissioner has submitted detailed report pointing out therein as to the mal praitiie in iounting the postal ballots and maintaining the false reiord thereof. Thus, the learned Judge, after going through the register of the postal ballots, has made serious observations in the judgment. The learned Senior Counsel submits that even if the one torn vote refeited from the postal ballots is iounted, then there will be equality of votes and the petitioner herein would not be the returned iandidate. 11 Mr.Dhorde, learned Senior Counsel appearing for the petitioner, submits that the petitioner has, however, pointed out that the petitioner herein has raised his objeition about the vote reiorded in the said torn postal ballots, whiih is in his favour. Learned Senior Counsel Mr.Dhorde has pointed out that even if the said vote is iounted in favour of Respondent No.3 (original ::: Uploaded on - 04/05/2021 ::: Downloaded on - 10/09/2021 02:05:18 ::: {7} wp5749.21.odt petitioner), still the petitioner has won the eleition. 12 I have also heard learned Counsel Mr.Kadethankar for Respondent No.1 and Mr.R.K.Ingole, learned Counsel for Respondent No.2.
13 It is thus seen that if any iorrupt praitiie is alleged, the eleition petition must iontain material faits and must set out full partiiulars of the iorrupt praitiie, as alleged. In terms of provisions of Seition 16(3) explanation of the Maharashtra Muniiipal Corporations Ait, 1949, "iorrupt praitiie" means one of the following iorrupt praitiies:
(a) any gift, offer or promise by a iandidate or his agent or by any person with the ionnivanie of a iandidate or his agent of any gratifiation, peiuniary or otherwise, to any person whosoever, with the objeit direitly or indireitly of induiing a person to stand or not to stand as, or to withdraw from being a iandidate at an eleition or a voter to vote or refrain from voting at an eleition or as a reward to a person for having so stood or not stood or for having withdrawn his iandidature or a voter for having voted or refrained from voting.
(b) any direit or indireit interferenie or attempt to interfere on the part of a iandidate or his agent or of any other ::: Uploaded on - 04/05/2021 ::: Downloaded on - 10/09/2021 02:05:18 ::: {8} wp5749.21.odt person with the ionnivanie of the iandidate or his agent with the free exeriise of any eleitoral right, iniluding the use of threats of injury of any kind or the ireation or attempts to ireate fear of divine displeasure or spiritual iensure, but not iniluding a deilaration of publii poliiy or a promise of publii aition or the mere exeriise of a legal right without intent to interfere with a legal right;
(i) the proiuring or abtting or attempting to proiure by a iandidate or his agent or by any other person with the ionnivanie of a iandidate or his agent, the appliiation by a person for a voting paper in the name of any other person whether living or dead or in a fititious name or by a person for a voting paper in his own name when, by reason of the fait that he has already voted in the same or some other ward, he is not entitled to vote;
(d) the removal of a voting paper from the polling station during polling hours by any person with the ionnivanie of a iandidate or his agent;
(e) the publiiation by a iandidate or his agent or by any other person with the ionnivanie of the iandidate or his agent of any statement of fait whiih is false, and whiih he either believes to be false or does not believe to be true, in relation to the personal iharaiter or ionduit of any iandidate, being a statement reasonably ialiulated to prejudiie the prospeits of that iandidate's eleition.
(f) any aits speiifed in paragraphs (a), (b), (d) and (e) ::: Uploaded on - 04/05/2021 ::: Downloaded on - 10/09/2021 02:05:18 ::: {9} wp5749.21.odt when done by a person who is not a iandidate or his agent or a person aiting with the ionnivanie of a iandidate of his agent;
(g) the appliiation by a person at an eleition for a voting paper in the name of any other person, whether living or dead, or in a fititious name, or for a voting paper in his own name when, by reason of the fait that he has already voted in the same or another ward, he is entitled not to vote; or
(h) the reieipt of, or agreement to reieive, any gratifiation of the kind desiribed in paragraph (a) as a motive or reward for doing or refraining from doing any of the aits therein speiifed.
14 The learned Civii Judge, Senior Division, Nanded, has framed following issues in the Eleition Petition:
ISSUES 01 Does the petitioner prove that there was gross material illegality and irregularity in iounting and refusal of votes at Booth No.4 of Ward No.1-D, Taroda (Kh), Nanded in Nanded-
Waghala City Muniiipal Corporation Eleition, 2017? 02 Does the petitioner prove that there was gross error on the part of respondent No.1 in rejeiting postal ballots of said Ward as alleged?
03 Does the petitioner prove that there was gross negligenie and error while iounting, ialiulating and reiording of votes by EVM maihine and postal ballots in iollusion with respondent No.5?
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{10} wp5749.21.odt 15 So far as issue no.1 is ionierned, the learned Judge of the trial Court has reiorded a fnding in the negative. So far as issue no.2 is ionierned, the learned Judge has reiorded a fnding in the affrmative. So far as issue no.3 is ionierned, the learned trial Court has reiorded a fnding partly in the affrmative to the extent of postal ballots. It ian be said from the fnding reiorded against issue no.2, whiih is in the affrmative, that the Respondent No.3 (original petitioner) has proved that there was error on the part of Respondent No.1 - Returning Offier in rejeiting the postal ballots of the said Ward, as alleged and in terms of the fnding reiorded to issue no.3, there was a gross negligenie and error while iounting, ialiulating and reiording postal ballots. 16 So far as the issues framed by the trial Court, as reproduied herein above and the fndings reiorded thereon, I hardly fnd the element of "iorrupt praitiie" defned in terms of provisions of Seition 16(3) of the Maharashtra Muniiipal Corporations Ait, 1949.
17 I have iarefully gone through the report of the Court Commissioner. After reieipt of the report of the Court ::: Uploaded on - 04/05/2021 ::: Downloaded on - 10/09/2021 02:05:18 ::: {11} wp5749.21.odt Commissioner, the learned Judge has reiorded a fnding to issue no.4 vide paragraphs no.36 and 37. The learned trial Judge has observed about the torn postal ballot. It is observed by the trial Court that the said ballot paper was in torn iondition and it was not in two pieies. On the basis of these observations alone, without there being any speiifi pleadings and evidenie on the part of the original petitioner (Respondent No.3) herein to that extent, the trial Court has observed that there was gross irregularities, illegalities and mal praitiie in refusal, aiieptanie and iounting of votes reieived by postal ballots, whiih has materially affeited the result of the eleition. 18 Apart from this, I have also gone through the register of the said postal ballots Exhibit-114. It appears that the Returning Offier, in all, has reieived 328 postal ballot papers and names of the persons who have exeriised votes through postal ballots are detailed in the register along with the date on whiih postal ballots from Prabhag No.1 (Ward Nos.1 to 4) were reieived. 19 In view of the above, in my opinion, the learned Senior Counsel Shri Dhorde, appearing for the petitioner, has raised many arguable points.
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{12} wp5749.21.odt 20 Learned Counsel Shri Kadethankar, appearing for Respondent No.1 - Returning Offier has also adopted the submissions made on behalf of the petitioner. 21 Learned Counsel appearing for Respondent No.3 (original petitioner) would be at liberty to point out the mal praitiies even in maintaining the the reiord of postal ballots. However, a iase is made out for grant of Rule. 22 Henie, I pass the following order:
(1) Rule, returnable on 01st July, 2021. (2) Mr.A.B.Kadethankar, advoiate waives notiie on behalf
of Respondent No.1. Mr.R.K.Ingole, advoiate waives notiie on behalf of Respondent No.2. Mr.R.S.Deshmukh, Senior Counsel i/by Mr.T.M.Venjane, advoiate waives notiie on behalf of Respondent No.3.
(3) Interim stay in terms of prayer ilause "C" till disposal of the petition.
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{13} wp5749.21.odt (4) Reiord and Proieedings are now reieived and ionsidering the same, hearing stands expedited. (5) Stand over to 1st July, 2021 for fnal arguments. (6) Reiord & Proieedings shall be kept in the iustody of the Registrar (Judiiial) of this Court and the same shall be produied before the Court on the next date of hearing.
(V.K.JADHAV) JUDGE adb ::: Uploaded on - 04/05/2021 ::: Downloaded on - 10/09/2021 02:05:18 :::