Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
C.V. BHADANG, J.
Mr. Ashok Rajaram Raul – Appellant
Versus
Mr. Mandar Pramod Vichare – Respondent
Civil Writ Petition No.4838 of 2019
Decided on : 17–05-2021
Maharashtra Municipal Corporations Act, 1949 - Section 16 r/w. Section 403 - Representation of Peoples Act, 1951 - Section 100(1)(b) - State Election Commission - Election for Councilor - Allegations regarding corrupt practice and/or undue influence were vague and baseless and in fact defamatory in nature. It was denied that petitioner had intentionally concealed pendency of any criminal case - Whether election of petitioner is liable to be set aside on ground of non disclosure of pending criminal case/s by petitioner, in nomination form/affidavit, amounting to undue influence and/or corrupt practice, vitiating election.
Finding of the court: It is well settled principle to which no exception is shown to be carved out in decision in Konappa Nadgouda except where there are only two candidates in fray. First respondent has neither pleaded nor there is any evidence to show that voters were put to notice about disqualification or otherwise of petitioner. Thus although election of petitioner is set aside votes polled in his favour cannot be treated as votes ‘thrown away’ there by entitling first respondent to be declared as elected in place of petitioner - Based on non disclosure of criminal antecedent has been adequately pleaded in petition. It is true that burden to establish ground/s would lye on the candidate assailing the election. However it can not be equated with the burden similar to one on prosecution in a criminal case - Judgment declaring first respondent elected as a Councilor from Ward No.12-D is hereby set aside. Part of judgment setting aside the election of the petitioner from the said ward is hereby confirmed.
Result: Petition is partly allowed.
JUDGMENT :
Rule. Rule made returnable forthwith. The learned counsel for the respondents waive service. Heard finally by consent of parties.
2. The challenge in this petition is to the judgment and order dated 16 March 2019 passed by the learned Civil Judge, Senior Division at Thane in Election Petition No.2/2017. By the impugned judgment, the election petition filed by the first respondent has been allowed, thereby setting aside the election of the petitioner as a Councilor from Ward No.12-D of Thane Municipal Corporation and the first respondent is declared as an elected candidate from the said ward in the place of the petitioner.
3. The brief facts necessary for the disposal of the petition may be stated thus-
That the general elections of the Municipal Corporation, Thane were held in February 2017 in which the petitioner and the respondent Nos.1 to 4 were the contesting candidates, from Ward No.12-D, Siddheshwar Talav, Nagdevwadi, Chandanwadi, Thane (West). In the said election, the petitioner polled highest number of votes being 9184. The first respondent was the immediate rival who polled 8171 votes. The respondent Nos.2 to 4 secured respectively 4446, 1600 and 216 votes. The petitioner having secured the highest number of votes was declared elected.
4. The first respondent filed election petition, under Section 16 of the Maharashtra Municipal Corporations Act, 1949 (‘Act of 1949’) being Election Petition No.02/2017 before the learned Civil Judge, Senior Division at Thane, challenging the election of the petitioner on the ground that the petitioner was disqualified to contest the said election and on account of a material irregularity in the election proceedings and the corrupt practice. In short, according to the first respondent, the petitioner (the respondent No.1 before the Trial Court) filed his nomination form furnishing false, misleading and incomplete information. While elaborating the said ground, it was contended that the petitioner had disclosed in the nomination form that there is only one criminal case pending against him, while there were two other criminal cases in which the petitioner was facing trial. According to the first respondent, the following two criminal cases were not disclosed by the petitioner while filling the nomination form.
(ii) Case No.4414/SS/2005, pending before the Hon. 43rd Metropolitan Magistrate Court, Mumbai, wherein the Respondent No.1 is arrayed as Accused No.1.
5. It was contended that by furnishing such false, incomplete and misleading information, the petitioner has mislead and mis-represented to the voters of the constituency about his clean image “resulting in supremacy over other candidates”. According to the first respondent, on account of such misleading information, the voters were induced by the petitioner, to cast votes in favour of the petitioner, although the petitioner was facing offences of cheating, criminal breach of trust and other offences, involving moral turpitude. It is contended that this has materially affected the result of the election.
6. On behalf of the first respondent, reliance was placed on a notification dated 1 September 2006 issued by the State Election Commission, according to which, a candidate contesting an election is obliged to make full and complete disclosure with regard to the matters in para 5 of the preamble of the said notification. It was contended that in the event of a candidate furnishing incomplete, incorrect or false information, or failing to furnish full and correct information with regard to the five matters, it would be a sufficient ground for setting aside his election, as he would be disqualified under the relevant provisions of law. The disclosure which is requi
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
