Judgment:
Anoop V. Mohta, J.
1. Heard finally, by consent in view of urgency shown and as both the matters revolved around the common Judgment and Order dated 19/01/2007, passed in Election Petition No. 1 of 2007, passed by the learned 7th Additional Judge, Small Causes Court, Pune, and as the basic parties are common, therefore, this common judgment.
2. In Writ Petition No. 2362 of 2009, the Petitioner is Original Respondent No. 3 in Election Petition (for short, E.P.) No. 1 of 2007. Respondent No. 1 is Original Election Petitioner in E.P.. Respondent No. 2 is a Pune Municipal Corporation (for short 'PMC') established under the provisions of Bombay Provincial Municipal Corporation Act, 1949. (for short 'BPMC Act'). The Election of Ward No. 42 of Respondent No. 2 was called in question. Respondent No. 3 is the Election Returning Officer (for short 'E.R.O.') appointed by the State Election Commission to conduct the elections. Respondent Nos. 4 to 10 are the candidates who contested the election from Ward No. 42.
3. In Writ Petition No. 2386 of 2009, the Petitioners are the PMC and E.R.O. as referred above. Respondent No. 1 in this Petition is original Election Petitioner. Respondent No. 2 is original Respondent No. 3 and others are contested candidates in E.P., as referred above.
4. The Petitioner in Writ Petition No. 2362 of 2009 who is resident of Ward No. 42 has nominated by Nationalist Congress Party. Respondent No. 1 is resident of Pune and voter enrolled in Municipal Electoral Roll Municipal of Ward No. 45 who was nominated candidate of Bhartiya Janata Party.
5. The population of Pune city is around 25 lacs out of that 18 lacs are voters registered with PMC, which are divided into 144 Wards. Each ward has about 15,000 to 17,000 voters. The election of Councillors was declared by order dated 20th December, 2006. The Divisional Commissioner, Pune Division Pune appointed 14 E.R.O.s including E.R.O. (Shri Nitin Gosavi). He was incharge of 11 wards including Ward No. 42 but excluding Ward No. 45. He had, with him therefore, voters list of these wards only and not of ward No. 45.
6. Respondent No. 1 filed his nomination paper on 15th January, 2007. The Petitioner filed his nomination within time. The scrutiny of the nomination papers was on 16th January, 2007. As alleged; Respondent No. 1 annexed to the nomination papers/form a certificate showing as a voter of the Municipal Electoral Roll of Ward No. 45; he was personally present at the time of scrutiny around 2.45 p.m.; the E.R.O., after calling Respondent No. 1 informed that the certificate showing that he is enrolled in the Electoral Roll of 45 not produced. Respondent No. 1 allegedly shown the actual electoral Roll to the E.R.O.. However, the E.R.O. insisted on filing of a valid certificate. Respondent No. 1, therefore, rush to the Officer of PMC at Shivaji Nagar. Around 4.30 p.m. he brought a new duly singed certificate of the Electoral Roll of Ward No. 45, however, it was informed to him that his nomination was already rejected. It is also alleged that Respondent No. 1 though present, marked absent in the order of rejection of his nomination. Respondent No. 1, therefore, unable to contest the Election from Ward No. 45. The Petitioner's nomination was accepted along with others. He came to be elected as a councillor.
7. Respondent No. 1, therefore, on 06/02/2007, on various grounds presented the E.P. Original Respondent Nos. 1 to 4 filed their respective written statements. Original Respondent Nos. 5 and 9 failed to file Written Statement. Original Respondent Nos. 6, 7, 8 and 10 failed to appear and the Petition proceeded ex-parte against them. Original Respondent Nos. 1 and 2 (PMC and E.R.O.) filed their respective Written Statements and admitted the facts of Election process. However, denied the other grounds as raised by Respondent No. 1. The Petitioner -Original Respondent No. 3 by his Written Statement resisted all the grounds and averments. Original Respondent No. 4 admitted all the contentions of Respondent No. 1. The evidence of P.W.1, P.W.2 Sachin Rananaware, P.W.3 Nandakumar Balu Vhakande were lead accordingly.
8. After hearing both the parties, the learned Judge, pass the impugned order basically revolving around the following issues which are as under:
1. Does the Petitioner prove that his nomination paper for the Yes. Election of Ward No. 42 has been illegally rejected?
2. Whether the Petitioner is Partly Yes. entitled to the relief as Prayed?
2A. Whether the petition is barred due to non joinder of No. necessary parties?
9. By the impugned order, it has been declared that Respondent No. 1's nomination paper for the Election of Ward No. 42 rejected illegally; the Petition is not barred for non-joinder of necessary parties; and thereby passed the impugned order of which operative part is as under:
1. The Petition is partly allowed.
2. It is hereby declared that the election of the respondent No. 3 from Ward No. 42 of the respondent No. 1 Corporation is void.
3. A fresh election of Councillor from Ward No. 42 of the respondent No. 1 Corporation shall be held.
4. The Respondent No. 1 shall pay the costs of the Petitioner as well as the costs of the respondent Nos. 3 and 4, and bear its own costs. The Respondent No. 2 shall bear his own costs.
5. It is requested by the learned Counsel for the respondent No. 3, at this stage, that eight weeks time should be granted, and till then, the operation of this order be stayed, for challenging the judgment and order. Hence, I do hereby stay the effect and operation of this order for the next five weeks from today.
10. The relevant Sections which deals with the Election of Councillors and Election Petition arising out of the Election ranges from Section 22 to Section 34 of the Mumbai Municipal Corporation Act, 1888 (for short the MMC Act). There are relevant Rules for the conduct of Election Rules, 1961 (for short, 'the Rules') also prescribed forms and form of affidavit to be filed at the time of filing nomination paper. The rules prescribed notice of nomination and the lists of validly nominated candidates. The form of affidavit, as well as, the filing nomination paper/form nowhere prescribed the filing of the documents along with the same. It mentioned about the relevant details required, including; age, caste, enrollment number in the voters lists and the ward number.
11. There is a clear obligation on the E.R.O. to scrutinize such nomination form/paper in all respects. The scrutiny of nomination paper, therefore, cannot be said to be just a formality as it goes to the root of the matter with regard to declaring lists of validly nominated candidates as contemplated under Sub-Section 8 of Section 36 of MMC Act. In a given case, if form or nomination papers are without material or details as required, the concerned E.R.O. can reject the nomination form then and there only. If nomination form and all other nomination papers and forms are in accordance with the requirement, there is no option but to accept the same. In view of this, I am of the view that it is necessary for the E.R.O. to scrutinize the nomination paper in detail and scrupulously, merely because, in the form/nomination paper nowhere provides to annexe the requisite documents in support of the details as mentioned, that itself cannot be the reason that the concerned candidate should not keep all the connected/relevant documents ready to support their nomination paper. It is also necessary for the E.R.O. to verify and confirm that those details as filled are correct based upon the valid documents and certificates. The E.R.O. is not under obligation to search and verify the electoral roll to find out the identity of Respondent No. 1. unless supported by the valid documents.
12. In the present case, the basic issue revolved around the filing of nomination paper without proper supporting certificate of Respondent No. 1 who had filed the nomination paper to contest the Election from Ward No. 42, though he is voter from Ward No. 45. The basic grievance is that his nomination paper was rejected for want of valid certificate. The filing of essential certificate along with the form is not the requirement of Law/Rule as recorded above. But, once the nomination papers are filed and when the same are required to be scrutinized by the E.R.O., in my view, it is necessary for the candidate to provide all the details including supporting documents. Merely because those are not filed with the nomination form, that itself cannot be the reason that the concerned candidate should not keep all the documents ready to satisfy the concerned E.R.O. about existence of all those details as required. The E.R.O. is also under obligation to confirm and verify all those details through the valid documents. Therefore, the contention that the requirement of those documents if not contemplated under the Rules or forms, the insistence of the documents in question was unnecessary is unacceptable.
13. The verification and the satisfaction of the concerned E.R.O., considering the scheme and purpose of such election is very important as it decides the rights of the parties in either way. If the nomination paper of one party is rejected, for whatever reason he definitely will be affected and will be debarred from the Election itself. If the nomination of one party is accepted wrongly, that also affects the whole election or particular election of the ward. It is also affects the voters and their rights in such election. The seriousness of such procedure and the power given to the E.R.O. under the Act if played so important role, I see there is no reason to discard and find fault with the powers of the E.R.O. for insistence of proper valid documents in support of nomination paper at the relevant time.
14. Mere filing of the documents itself is not sufficient. If the E.R.O. finds that the documents are not correct or in valid or unsigned or there is some doubt about the validity, he was fully justified in asking for valid or required certified copy of the documents.
15. The Apex Court in Ranjit Singh v. Pritam Singh and Ors. : [1966]3SCR543 observed that the relevant copy must be ready at the time of scrutiny though it need not be filed with nomination form. For want of proper certificate or affidavit nomination paper on the ground of non-compliance can be rejected (Narbada Prasad v. Chhaganlal : [1969]1SCR499 ).
16. The submission that the document was filed though it was unsigned and even voters lists of Ward No. 45 was shown, is not proved. The fact that Respondent No. 1 rush to bring second certified copy just cannot be overlooked. The E.R.O. as recorded was not incharge of Ward No. 45; the contention that such E.R.O. should have verified Respondent No. 1's name or number in the voter's list of Ward No. 45 is also incorrect. Such election procedure and process has always fixed scheduled within which everybody needs to work and finish the process. In the present case, the scrutiny was fixed on 16th January, 2007. The E.R.O. was incharge of 11 Wards i.e. Ward Nos. 42, 43, 44, 89, 90, 91, 92, 93, 94, 95 and 96 only. Therefore, he had voters list of these wards only. Admittedly, Respondent No. 1 is registered voter of Ward No. 45. Therefore, as noted, in my view, it was necessary for the contesting candidates to keep valid documents with them so that the E.R.O., subject to hearing/objection, if any, could have decided and finalized the nomination form of Respondent No. 1.
17. The another aspect is that an objection can be raised, by the other candidates to the nomination form/paper those objections are required to be disposed of as early as possible. All the parties/candidates, therefore, are aware of the basic requirement of supporting documents, though they have not filed those documents along with the nomination form. Even assume for a moment as contended though there is nothing on record that Respondent No. 1 had shown so called lists of voters from Ward No. 45, still the requirement and satisfaction of the concerned E.R.O. and insist of valid certified copy or document for finalizing the list of nomination paper of a candidate who wanted to contest from the ward No. 42 though he is from the ward No. 45 just cannot be said to be unjust or non requirement of law as contended. The insistence of duly signed certificate copy, therefore, in my view, just cannot be said to be beyond the scope and/or power under the Act and/or the Rules.
18. Respondent No. 1 averred in the Election Petition that he was personally present at the time of scrutiny around 2.45 p.m. and as insisted for duly signed certificate copy, he had rushed to the Officer of PMC and secured another copy and approached to the E.R.O. around 4.30 p.m., but he was informed that his nomination was already rejected. Further Respondent No. 1 averred that he was present at the time of scrutiny yet, he was marked absent. Respondent No. 1, however, was unable to justify this averments, as in the cross-examination he admits that the scrutiny was going on up to 6.30. p.m.. He also stated that no document was annexed along with the nomination form. This is rightly so, because if there is no requirement to file document along with nomination form, the submission that the documents was annexed to the said nomination form is unacceptable. It can be borne out from the record that when the E.R.O. called and as the first certificate was of without signature and therefore, informed to Respondent No. 1 to bring valid duly signed certificate. In my view, therefore, at the relevant time as certificate was not duly signed, the E.R.O. has rightly insisted for duly signed certificate.
19. Once, the Petitioner himself admits and in view of above, the first document could not have been filed along with the application and as it that was not duly signed therefore, he went out and could not reach within time, the E.R.O. duly scrutinized the other nomination forms/papers and again called the name of Respondent No. 1 and lastly and waited for 20 to 30 minutes and as none responded, the nomination of Respondent No. 1 was rejected.
20. Respondent No. 1 once admit that the scrutiny was going on upto 6.30 p.m. and on the other hand his averments that it was closed at about 4.35 p.m. itself is self-destructive. Having once raised specific pleas in E.P. with positive averments with regard to the timing of the closing of the nomination paper and if such party or Respondent No. 1 failed to justify the same with material on record also not supports specially his statement/admission, that the scrutiny was ended at about 6.30 p.m., in my view this also demonstrates that Respondent No. 1 failed to support or prove his basic case of invalid rejection of his nomination paper.
21. In E.P. the election basically, Petitioner must prove his case. Merely because (Respondent No. 2) - the E.R.O. failed to lead evidence to support the averments that itself cannot be the reason to accept the case of Respondent No. 1 on the ground of adverse inference as done in the present case by the learned Judge. Considering the admission including the documents on record when Petitioner himself unable to prove his case, there is no question of drawing adverse inference against the Petitioner or in favour of Respondent No. 1.
22. Apart from the admission the record of E.R.O. shows that while scrutinizing the various nomination papers of other wards and was recorded that after completion of all the scrutiny, the E.R.O. had called again the name of Respondent No. 1, but there was no response. It means, after waiting for half an hour the nomination paper was rejected at about 7.00 p.m. and he closed the process of scrutiny of nomination paper. The E.R.O. record shows above noting, the presumption is in favour of the same unless rebutted by substantial material by the party who challenges the same. In the present case as recorded Respondent No. 1 unable to rebut the said presumption. On the contrary, he himself stated in his evidence that the scrutiny went on up to 6.30 p.m.
23. In view of this, the reliance on Vidhyadhar v. Mankikrao and Anr. reported in : [1999]1SCR1168 is not of any assistance to Respondent No. 1 and even otherwise that itself cannot be the reason to accept the case of Respondent No. 1 and the reasoning as recorded in the impugned order.
24. In the present facts and circumstances as recorded above, according to me, the defect was not nominal or minor. Respondent No. 1 as recorded wanted to contest from Ward No. 42 though he is resident of Ward No. 45. The insistence of duly signed certified document as done in the present case just cannot be said to be minor defect or nominal requirement. Therefore, reliance on Ram Bhual v. Ambika Singh reported in : AIR2005SC4233 is also of no assistance.
25. It is not the case that no opportunity was given to support to nomination form. Inspite of full opportunity and as within prescribed time Respondent No. 1 unable to bring the document before Respondent No. 2- E.R.O.. The reliance on Rakesh Kumar v. Sunil Kumar reported in : [1999]1SCR470 is also of no assistance.
26. In Mathura Prasad v. Ajeem Khan reported in : [1990]2SCR503 , the Apex Court was observed that though opportunity was given and yet defects was not removed. The E.R.O. is justifying in rejecting the nomination paper. The defect if not removed at given time, no fault can be found for rejection of such nomination paper. Such scrutiny and enquiry is essential, for proper determination though it is in a summary manner. : AIR1976SC1866 . In Shiv Gopal reported in : [1971]2SCR197 the Apex Court has upheld the rejection of nomination paper for want of a certified copy. In the present case, there is nothing on record to show that Respondent No. 1 is able to produce fresh certificate within prescribed time.
27. As recorded above, the rejection of nomination paper in the facts and circumstances was proper. No fault can be found in such rejection. Therefore, Santosh Yadav v. Narender Singh : AIR2002SC241 and Ms. Krishna Mohini v. Mohinder Nath Sofat : AIR2000SC317 are also of no assistance to maintain the impugned Judgment/order. The facts and circumstances are distinct and distinguishable in the cases cited by the learned Counsel appeared for Respondent No. 1- the Election Petitioner.
28. In view of this, I am of the view that Respondent No. 1 Original-Petitioner failed to prove his nomination for the Election of Ward No. 42, was rejected illegally or wrongly. For the reasoning given above, I am of the view that Respondent No. 1 is not entitled to relief as prayed and as granted. Having once observed above and as no points agitated seriously with regard to the joining of necessary parties, I am also not dealing with those points.
29. Resultantly, impugned order dated 19th January, 2009 declaring the election of the Petitioner from Ward No. 42 of PMC void, is quashed and set aside, and therefore, all the subsequent orders are also quashed and set aside. The Election Petition is dismissed.
30. In the result, both the Writ Petitions are allowed. No costs.