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2011 Supreme(Bom) 1521
2012(2) AllMR 662
Bombay High Court
K.U.CHANDIWAL
Tatyasaheb Alias Raghunath s/o Omkar Patil
Vs
The Election Commissioner of India & Ors.
Decided On : 23/12/2011
Head Note :
Representation of People Act (1951), S.100(1)(d)(iv) - Representation of People Act (1950), S.23 - Entries made in electoral roll can only be challenged in accordance with machinery provided by it and not before any other forum. Entries made in electoral roll can only be challenged in accordance with machinery provided by it and not before any other forum. Finality of electoral cannot be challenged in an election petition, even if certain irregularities had taken place in preparing Electoral roll. The voters were not disqualified under Section 16 of 1950 Act. In the light of this legal position, merely for alleged breach of Section 23(3) of 1950 Act, by virtue of amendment in 1956, in 1951 Act, the petition would not be maintainable under Section 100 of 1951 Act.
Headnote:Representation of the People Act, 1951 - Section 100(1)(d) - Election petition. If defects in an election petition are minor or cosmetic in nature, petition not to be dismissed summarily.
Representation of the People Act, 1951 - Section 100(1)(d)(iv) - Election petition. In election petition, roving and fishing inquiry, without pleading, cannot be at a trial.
Representation of the People Act, 1951 - Section 100(1)(d)(iv) - Election petition. If an election petition not furnishes cause of action, it can be summarily dismissed in exercise of power under Civil Procedure Code.
Representation of the People Act, 1951 - Section 100(1)(d)(w) - Election petition challenging electoral roll. Entries made in electoral roll can only be challenged in accordance with machinery provided by it and not by way of an election petition.
Entries made in electoral roll can only be challenged in accordance with machinery provided by it and not before any other forum. Finality of electoral cannot be challenged in an election petition, even if certain irregularities had taken place in preparing Electoral ro ll. The voters were not disqualified under Section 16 of 1950 Act. In the light of this legal position, merely for alleged breach of Section 23(3) of 1950 Act, by virtue of amendment in 1956, by Act No. 27 of 1956, dt. 8th June, 1956, in 1951 Act, the petition would not be maintainable under Section 100 of 1951 Act. This answers point No. "c" against petitioner.
Representation of the People Act, 1951 - Section 100(1)(d)(w) - Election Rules, 1961, Rule 94 - Election petition. An election petition should not summarily dismissed for want of affidavit under Rule 9 of Rules, 1961 alleging corrupt practice.
Counsel for the petitioner has clarified that he has not made allegations of corrupt practice in terms of Section 123 of 1951 Act. Whatever pleadings of unfair play or mala fides exists is owing to reference of deleted respondents. Since the respondents are deleted, the pleadings of unfairness or mala fides or ulteriorness of the election officers has become inconsequential. Hence, held that the petition would not fail for want of affidavit under Rule 94 of Election Rules, 1961, alleging corrupt practice.
1. Heard. In both the election petitions, application under Order 7 Rule 11 of C.P.C. is moved by original respondent no.5 (now sole respondent the returned candidate) for rejecting election petitions for want of requisite legal compliances.
2. The petitioner Tatyasaheb and respondent contested Legislative Assembly election for 18th Pachora Assembly, Maharashtra State. The Election Commissioner, vide notification dated 18th Sept.,2009, has declared election programme for the State Legislative Assembly of Maharashtra State, 25th Sept.,2009, was the last date for making nominations, the polling was scheduled on 13th Oct.,2009. The petitioner Tatyasaheb secured 73,501 votes while respondent (sole) Deelip Wagh secured 79,715 votes and, consequently, the respondent was declared elected.
3. The petitioner canvassed, as per the election programme published, 25th Sept.,2009, was the date for filling in nominations, and in the light of Section 23 of the Representation of People Act, 1950, no addition and deletion in electoral roll is permissible. Publication of a supplementary list on 28th Sept., 2009, of almost 4500 names of new voters is against the provisions of the law, impermissible, amounts to non compliance of the provisions of the Constitution and Representation of People Act, 1951, in the light of Section 100(1)(d)(iv) of Representation of People Act, 1951, and on this ground the election of the respondent is sought to be declared as void. The petitioner contended, inclusion of around 4500 voters after filling in the nomination is not only illegal but it smells of mala fides on the part of respondent no.4 ( since deleted) and to usurp electoral verdict to the respondent (now sole).
4. In Election PetitionNo.10/2009 of Smt.Swati Patil, has claimed that inclusion of her name subsequently in the electoral roll has adversely influenced her chances of participating/contesting the election. This is more so as a candidate in the Assembly election has to furnish his electoral roll number in the State, to be a contestant for such election. The illegal inclusion, without any authority of law in the officers of the Election Commission has resulted in a prejudice to all the candidates who were in the fray. This has happened only in Pachora constituency from entire State which indicates, purposeful design with an ulterior motive, to help some candidate, or to cause prejudice to some candidate.
5. By virtue of this Court's order the authorities of Election Commission, original respondent nos. 1 to 4, were duly deleted by the petitioner and the petition is contested now by the returned candidate as sole respondent.
6. The respondent has canvassed that the petition will not stand in terms of Section 100(1)(d)(iv) of the Representation of People Act, 1951 ( for short, "Act of 1951), as the Act of 1951 and the Act of 1950 operate in an altogether different fields. The assumption carried by the petitioner of all 4500 disputed electorate having exercised their right of franchise is fundamentally faulted, which is inconsistent with the electoral behaviour/ pattern. Even otherwise, due to margin difference, the inclusion of disputed 4500 electorate has not slightly affected the result of election. This eloquently demonstrate that the foundation of election petition is faulted which calls for rejection of the petition. The entire election could not be declared as void as the right of electorate which is sacrosanct, need not be interfered with casually in absence of convincing and cementing grounds. There are no material facts pleaded to distinctly show which are such 4500 names newly incorporated nor the list annexed demonstrated such 4500 names. The assumptive figure is given, to be nearly 4500 which, by assumptive surmises, could be 1 to 4500 as a cap.
7. It is canvassed by respondent that, it is not pleaded that all disputed 4500 electorate have enblock voted in favour of the returned candidate. It has also not been pleaded, and it is n
