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2014 DIGILAW 966 (BOM)

Priya Shivaji Gadade Adult v. Laxmi Pravin Chavan

2014-04-11

R.V.MORE

body2014
Oral Judgment 1. Heard learned counsel appearing for the respective parties. 2. Rule. Rule is made returnable forthwith and by consent, the matter is heard finally. 3. By this petition filed under Articles 227 of the Constitution of India, the petitioner is challenging the judgment and order dated 14th March, 2013, passed by learned Judge of the Small Causes Court at Pune in Election Petition No.7 of 2012. By the impugned order, learned Judge of the Small Causes Court allowed the election petition filed by respondent No.1 and set-aside the petitioner's election from Ward No. 56- B of Pune Municipal Corporation as Councillor. The petitioner is further disqualified from being elected or being a Councillor for the term of seven years from the date of the said order. 4. The uncontroverted and undisptued facts are follows: The general election of Pune Municipal Corporation was held on 16th February, 2012, in which petitioner and respondent Nos. 1 to 11 were contesting elections from Ward No.56-B as candidates from different political parties. Respondent Nos. 5 to 11 withdrew their nominations and five candidates remained in the final list of contesting candidates viz. petitioner and respondent Nos. 1 to 4. The elections were conducted and results were declared on the scheduled dates. The petitioner secured highest number of votes and, therefore, was declared elected from Ward No. 56-B. Respondent No.1 challenged the petitioner's election by filing Election Petition No.7 of 2012. The election was challenged on the ground that the petitioner was born on 5th September, 1991 and on the last day of filing nomination form i.e. on 31st January, 2012, she had not completed 21 years of age and as such, she was not qualified to contest the elections as per the provisions of Section 9 (1) of Maharashtra Provinicial Municipal Corporations Act (for short “the MPMC Act). It was specifically contented that the petitioner procured forged and fabricated certificate from the Municipal Corporation wherein her date of birth is shown as 5th September, 1990. Respondent No.1, in order to prove her case, examined herself as PW-1. She also examined one Mrs. Madhura Upendra Kulkarni-PW2, Mr. Akade Ram Subbarao- PW3, Dr. Ramesh Jangu Chavan- PW-4 and Balwant Tukaram Bankar-PW5. The petitioner did not enter into witness box nor examined any witness on her behalf. PW 2-Mrs. Respondent No.1, in order to prove her case, examined herself as PW-1. She also examined one Mrs. Madhura Upendra Kulkarni-PW2, Mr. Akade Ram Subbarao- PW3, Dr. Ramesh Jangu Chavan- PW-4 and Balwant Tukaram Bankar-PW5. The petitioner did not enter into witness box nor examined any witness on her behalf. PW 2-Mrs. Madhura Upendra Kulkarni who is Head Mistress in N.M.V.Girls High School and Jr.College, has proved the petitioner's school leaving certificate at Exhibit “68”. As per the school leaving certificate, the date of birth of the petitioner is 5th September, 1991. PW-3- Mr. Akade is working in Pune Municipal Corporation. On the basis of original record, he deposed that the birth certificate dated 5th September, 1990 is of one Rajani Jayshankar Ozha and not in the name of the petitioner-Priya Shivaji Gadade. Mr. Akade-PW 3 produced the extract of page No.9144 at Serial No.10659 from the birth register. He deposed that this extract is recorded as per the entry of Deodhar Hospital. As per the entry, the name of the father of the female child is Shivaji Bhiwaji Gadade and mother's name is recorded as Chhaya. Thus, PW-3- Mr. Akade, proved that the real date of birth of the petitioner is 5th September, 1991. PW-4-Dr.Ramesh Chavan is working as a Head of Birth and Death Registration Department of Pune Municipal Corporation. He produced copy of relevant register viz. Exhibit “96”. As per this register, the date of birth of the petitioner is 5th September, 1991 and registration number is 1991B0071409. The learned judge of the Small Causes Court held that the evidence of PW-2, 3 & 4 is sufficient to prove that the petitioner was born on 5th September, 1991. 5. Having heard learned counsel and having perused the depositions, I do not find any error in the said finding recorded by learned Judge of the Small Causes Court. The last date for filing nomination form was 31st January, 2012. The petitioner's date of birth is 5th September, 1991. Thus, she had not completed the age of 21 years on the last date of filing nominations. Section 9 of the MPMC Act lays down qualification for election as councillor. The said section reads as follows: “9. The last date for filing nomination form was 31st January, 2012. The petitioner's date of birth is 5th September, 1991. Thus, she had not completed the age of 21 years on the last date of filing nominations. Section 9 of the MPMC Act lays down qualification for election as councillor. The said section reads as follows: “9. Qualification for election as councillor: (1) Subject to the provisions of this Act, a person who is not less than twenty -one years of age on the last date fixed for making nominations for any general election or bye-election and is enrolled in the municipal election roll as a voter for a ward shall be qualified to be a councillor and to be elected either from such ward or from any other ward. (2) Any person who ceases to be a councilor shall, if qualified under sub-section (1), be eligible for re-elections as such.” Perusal of the above provisions of Section 9, makes the position abundantly clear that in order to be held eligible to contest elections for being a councillor, a person must have completed the age of 21 years. There is sufficient evidence on record to show that the date of birth of the petitioner is 5th September, 1991 and, therefore as on 31st January, 2012, i.e. on the last date for filing nominations for contesting elections, she had not attained the age of 21 years. The learned Judge of the Small Causes Court, therefore, correctly declared the petitioner's election as null and void and set-aside the same. 6. By the impugned order, learned Judge of the Small Causes Court, in addition to setting-aside the petitioner's election also disqualified the petitioner for being a councillor for the term of seven years from the date of the order. Learned Judge disqualified the petitioner to be a councillor for the period of seven years allegedly on the ground that she has committed corrupt practices. The term “Corrupt Practices” has been defined by way of explanation to sub-section 3 of Section 16 of the MPMC Act. The said definition is exhaustive and is reproduced below: “16. Election petitions (1) …... (2)....... (3) The Judge shall decide the applications made under sub-section (1) or (2) after holding an inquiry in the manner provided by or under this Act. The said definition is exhaustive and is reproduced below: “16. Election petitions (1) …... (2)....... (3) The Judge shall decide the applications made under sub-section (1) or (2) after holding an inquiry in the manner provided by or under this Act. Explanations.---For the purposes of this section-- (1) "corrupt practice" means one of the following practices, namely:-- (a) any gift, offer or promise by a candidate or his agent or by any person with the connivance of a candidate or his agent of any gratification, pecuniary or otherwise, to any person whomsoever, with the object, directly or indirectly of inducing a person to stand or not to stand as, or to withdraw from being, a candidate at an election or a voter to vote or refrain from voting at an election or as a reward to a person for having so stood or not stood or for having withdrawn his candidature or a voter for having voted or refrained from voting; (b) any direct or indirect interference or attempt to interfere on the part of a candidate or his agent or of any other person with the connivance of the candidate or his agent with the free exercise of any electoral right, including the use of threats of injury of any kind or the creation or attempts to create fear of divine displeasure or spiritual censure, but not including a declaration of public policy or a promise of public action or the mere exercise of a legal right without intent to interfere with a legal right; (c) the procuring or abetting or attempting to procure by a candidate or his agent or by any other person with the connivance of a candidate or his agent, the application by a person for a voting paper in the name of any other person whether living or dead or in a fictitious name or by a person for a voting paper in his own name when, by reason of the fact 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 connivance of a candidate or his agent; (e) the publication by a candidate or his agent or by any other person with the connivance of the candidate or his agent of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election; (f) any acts specified in paragraphs (a), (b), (d) and (e) when done by a person who is not a candidate or his agent or a person acting with the connivance of a candidate or his agent; (g) the application by a person at an election for a voting paper in the name of any other person, whether living or dead, or in a fictitious name, or for a voting paper in his own name when, by reason of the fact that he has already voted in the same or another ward, he is not entitled to vote; or (h) the receipt of, or agreement to receive, any gratification of the kind described in paragraph (a) as a motive or reward for doing or refraining from doing any of the acts therein specified; (2) …....” 7. Section 403 of the MPMC Act, lays down the procedure for election inquiries and Section 404 lays down disqualification for election as councillor for certain election offences. For ready reference Section 404 is reproduced herein below: “404. Disqualification for election as councilor for certain election offences: (1) If the Judge sets aside an election of a candidate on the ground that a corrupt practice has been committed in the interest of such candidate, he shall declare such candidate to be disqualified for the purpose of any fresh election which may be held under this Act. (2) If in any proceedings under section 16, the Judge finds that a corrupt practice has been committed within the meaning of that section by any person he may, if he thinks fit, declare such person to be disqualified for being elected and for being a councillor for such term of years not exceeding seven as he may fix : Provided that no such declaration shall be made unless such person has been given a reasonable opportunity to be heard : Provided further that the 1[State] Government may by order in writing at any time relieve such person from such disqualification but, subject only to such order, the declaration by the Judge shall be conclusive.” Under clause (1) of Section 404, if the Judge sets aside an election of a candidate on the ground that a corrupt practice has been committed, he shall declare such candidate to be disqualified for the purpose of any fresh election which may be held under this Act. Under clause (2) of the said section, if the Judge in any proceedings under Section 16 finds that corrupt practice has been committed within the meaning of that section, he may declare such person to be disqualified for being elected and for being a councilor for such term of years not exceeding seven as he may fix. Thus, under Section 404, once election of the candidate is set aside, he may be further disqualified, if the Judge finds that the candidate has committed corrupt practice within the meaning of Section 16 of the MPMC Act. 8. I have perused the election petition. Thus, under Section 404, once election of the candidate is set aside, he may be further disqualified, if the Judge finds that the candidate has committed corrupt practice within the meaning of Section 16 of the MPMC Act. 8. I have perused the election petition. The election of the petitioner is challenged by respondent No.1 only on the ground that the petitioner was not qualified to contest the election of the councillor as she had not attained the age of 21 years at the time of filing nomination papers. Perusal of the entire election petition does not disclose any allegations of corrupt practice against the petitioner as defined under the explanation given in Section 16 of the MPMC Act. Thus, there are no pleadings about corrupt practice alleged to have been committed by the petitioner. So far as evidence is concerned, PW-2, 3 & 4 are examined to prove the correct date of birth of the petitioner. PW-5 is the Returning Officer. Respondent No.1 examined herself as PW-1. She has testified and admitted that the allegation that the petitioner is under age and, therefore, disqualified is only hear say. Besides this, there is no evidence of corrupt practice which the petitioner has committed. Thus, there are no pleadings and there is no evidence on record about the corrupt practices committed by the petitioner. 9. Learned Judge of the Small Causes Court framed issue No.2 as follows: 2. Whether the petitioner proves that the respondent No.1 indulged into various corrupt practices and she was not even qualified to contest the election? This issue was answered in affirmative. 10. Learned Judge made observations of the petitioner's corrupt practice only in paragraph 37 which reads as follows: “37. In short, considering the pleading of the parties, evidence both oral and documentary on record, as discussed above, I hold that the petitioner has sufficiently proved that the respondent No.1 was born on 5th September, 1991 and she did not attain 21 years age at the relevant time held and that she indulged herself into the corrupt practices and she was not even qualified to contest the election. Hence, in view of the above discussion, I do not find by any hesitation to answer the Issues No.1 and 2 in affirmative.” The finding of the learned judge that the petitioner indulged in corrupt practices is based upon the fact that the petitioner was not qualified to contest the elections. The qualification to contest the elections and corrupt practices are two different aspects. The election of the candidate can be set-aside if it is proved that he is not qualified to contest the elections. However, in order to hold that the candidate is guilty of corrupt practices, the practices enumerated in clauses (a) to (h) of clause (1) of explanation to subsection 3 of Section 16 of the MPMC Act needs to be proved. 11. In the present case, it was not the case of respondent No.1 that the petitioner has committed corrupt practices within the meaning of explanation to Sub-Section (3) of Section 16 of MPMC Act, nor there is any evidence in that regard. In the absence of any pleadings and evidence, there is also no discussion in the impugned judgment regarding corrupt practices by the petitioner. Learned Judge in Paragraph 37 has recorded stray finding that the petitioner indulged herself in corrupt practices. However, this finding is not supported by any reason much less the cogent. The petitioner, therefore, could not have been disqualified for being elected and for being a councillor for a period of seven years from the date of the order. 12. Respondent No.1 also sought declaration that she has secured second hight number of votes and, therefore, be declared to be elected from Ward No.56-B of the Pune Municipal Corporation. The learned Judge has discussed the entitlement of respondent No.1's in this regard in paragraphs 40 & 41 and her prayer is rejected. Respondent No.1 has not challenged the said declaration by filing separate petition. Therefore, I am not inclined to disturb the said finding. The impugned order, so far as it disqualifies the petitioner for further elections is concerned, the same is required to be quashed and set aside. The petition is, accordingly, disposed by passing the following order: 1. The impugned judgment and order, so far as it quashes and sets-aside the petitioner's election from Ward No.56-B of the Pune Municipal Corporation is concerned, is confirmed. 2. The petition is, accordingly, disposed by passing the following order: 1. The impugned judgment and order, so far as it quashes and sets-aside the petitioner's election from Ward No.56-B of the Pune Municipal Corporation is concerned, is confirmed. 2. The impugned order, so far as it disqualifies the petitioner for being elected or for being councillor for a period of seven years from the date of the order is concerned, the same is quashed and set-aside. 3. The Election Commissioner/Concerned Authority shall hold fresh elections of Ward No.56-B of the Pune Municipal Corporation as per directions in paragraph 4 of the operative part of the impugned order.