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Gajanan Vs. Kirtikumar Mitesh Bhangdiya and Others - Court Judgment

LegalCrystal Citation
CourtMumbai Nagpur High Court
Decided On
Case NumberElection Petition No. 8 of 2014
Judge
AppellantGajanan
RespondentKirtikumar Mitesh Bhangdiya and Others
Excerpt:
.....understood name it, therefore, cannot be said that by description of returned candidate by name by which he was commonly understood, provisions of section 33(4) of the said act have been violated in any event, election of a returned candidate can be declared to be void under section 100 (1)(d)(iv) of the said act, if by virtue of non-compliance of the provisions of the said act, result of the election has been materially affected such is not case sought to be made out by petitioner election of respondent no.1 is not vitiated on account of change of his name in electronic voting machine nor are the provisions of section 33(4) of the said act violated petitioner has failed in proving that election of the respondent no.1 is liable to be set aside in present election petition..........the same reads thus: does the petitioner prove that vidarbha irrigation development corporation is state government for the purpose of section 9a of the representation of the people act, 1951? the learned counsel for the parties submitted that neither the petitioner nor the respondent no.1 desired to lead evidence on issue no.5 which was treated to be a preliminary issue. 4. by order dated 11-8-2016, the issue no.5 was taken up as a preliminary issue and the same was answered against the petitioner by passing the following order: 1. issue no.5 has been taken up as a preliminary issue for consideration. the said issue reads as under: does the petitioner prove that vidarbha irrigation development corporation is state government for the purpose of section 9a of the representation of the.....
Judgment:

Oral Judgment:

1. This election petition has been filed by the petitioner under Section 80 of the Representation of the People Act, 1951 (for short, the said Act) challenging the election of the respondent No.1 as a Member of the Legislative Assembly from 074 Chimur constituency.

2. The election of the respondent no.1 has been challenged principally on the ground that the respondent no.1 is a Government Contractor undertaking civil contracts and on the date of filing his nomination paper these contracts with the Government were subsisting. According to the petitioner, the respondent no.1, therefore, stands disqualified by virtue of provisions of Section 9A of the said Act. The other ground of challenge is that the respondent no.1 while submitting his nomination form had filled in the same as per his name appearing in the electoral roll. However, when the results of the election were declared, the name of the returned candidate was shown differently. This according to the petitioner resulted in breach of provisions of Section 33(4) of the said Act. It is on these grounds of the election of the respondent no.1 was challenged. In the written statement (Exhibit-11) filed on behalf of the respondent No.1 it has been pleaded that the contracts in question were with the Vidarbha irrigation Development Corporation (VIDC) which was not appropriate Government and hence, the respondent no.1 was not disqualified under provisions of Section 9A of the said Act. It was also pleaded that the provisions of Section 33(4) of the said Act were not violated as the name of the respondent no.1 that was shown in the return of election was the name by which he was commonly known. It was, therefore, prayed that the election of the respondent no.1 did not deserve to be set aside.

3. In the light of the pleadings of the parties, the following issues were framed:

(1) Does the petitioner prove that on the date of filing the nomination, the respondent no.1 was a Government Contractor and whether there was any subsisting contract on the said date thereby incurring disqualification as contemplated under Section 9A of the Representation of the People Act, 1951?

(2) Whether by submitting resignation on 2-8-2014 to the Registrar of Companies, does the Respondent no.1 prove that he had no continuing interest in the said Company which had continued the work contracts with Vidarbha Irrigation Development Corporation?

(3) Whether the petitioner proves that the respondent no.1 was holding any share in Yuwa Shakti Textiles as alleged?

(4) Whether the petitioner proves that election of respondent no.1 is vitiated on account of change of his name in the Election Voting Machine and there is any violation of Section 33(4) of the Representation of the People Act, 1951?

Thereafter on the application moved by the respondent no.1 issue No.5 came to be framed. The same reads thus:

Does the petitioner prove that Vidarbha Irrigation Development Corporation is State Government for the purpose of Section 9A of the Representation of the People Act, 1951?

The learned Counsel for the parties submitted that neither the petitioner nor the respondent no.1 desired to lead evidence on issue no.5 which was treated to be a preliminary issue.

4. By order dated 11-8-2016, the issue No.5 was taken up as a preliminary issue and the same was answered against the petitioner by passing the following order:

1. Issue no.5 has been taken up as a preliminary issue for consideration. The said issue reads as under:

Does the petitioner prove that Vidarbha Irrigation Development Corporation is State Government for the purpose of Section 9A of the Representation of the People Act, 1951?

The learned Counsel for the parties on 14-7-2016 submitted that the parties did not intend to lead any evidence on the preliminary issue. Accordingly, they have been heard on the said preliminary issue.

2. Shri M. R. Joharapurkar, the learned Counsel for the petitioner submitted that while considering provisions of Section 9A read with Section 7(a) of the Representation of the People Act, 1951 (for short, the said Act), it would also be necessary to consider the provisions of the Vidarbha Irrigation Development Corporation Act, 1997 (for short, the Act of 1997). Relying upon the averments made in paragraphs 17 to 20 of the election petition, it was submitted that the State of Maharashtra had all pervasive control over the affairs of the Vidarbha Irrigation Development Corporation (for short, VIDC). The Minister for Irrigation in the State of Maharashtra was the ex-officio Chairman of the VIDC and the employees of the State Government were working on deputation with the VIDC. It was, therefore, urged that considering the object of the provisions of Section 9A of the said Act and in view of the overall control of the State Government, VIDC would fall within compass of the provisions of Section 9A of the said Act.

3. Shri Anand Parchure, the learned Counsel along with Shri S.A. Chaudhary, the learned Counsel for the respondent no.1 submitted that in the present election petition, the election of the respondent no.1 has been challenged on the ground that the respondent no.1 was engaged in various works by entering into the contracts with VIDC. It was submitted that in the election petition, the case set up is that in view of the said subsisting contracts between the respondent no.1 through his firm on one side and the VIDC on the other side results in conflict of duty and interest and is in violation of the provisions of Section 9A of the said Act. According to the learned Counsel, for the purposes of attracting any disqualification for having a subsisting contract under Section 9A of the said Act, such contract has to be with the appropriate Government. Section 7(a) of the said Act defines the term appropriate Government to mean the State Government in the present case. It was urged that the VIDC was a distinct Corporation that was established under the Act of 1997 and the same could not be treated to be the State Government under Section 9A of the said Act. In support of this submission, the learned Counsel placed reliance upon the judgment of the Hon'ble Supreme Court in Shrikant Vs. Vasantrao and others 2006(2) Mh.l.J. 1. It was submitted that the concept of State under Article 12 of the Constitution of India was distinct from the term State Government under the said Act. Hence, it was urged that there was no question of breach of provisions of Section 9A of the said Act being committed on account of subsisting contracts with VIDC.

4. The provisions of Section 9A of the said Act have been considered by the Hon'ble Supreme Court in its decision in Shrikant (supra). The facts therein indicate that the returned candidate was a Government contractor who had executed works of the Maharashtra Jeevan Pradhikaran. On that basis, his election came to be challenged. While considering a similar contention that is sought to be raised by the petitioner herein, the Hon'ble Supreme Court in para 19 of its judgment held that while the term State may include the State Government as well as statutory or other Authorities for the purposes of Part III of the Constitution of India, the term State Government in its ordinary sense would not encompass in its hold either a local or statutory authority. On that basis it was held that the Godawari Marathwada Irrigation Development Corporation which was an authority constituted under the Maharashtra Godawari Marathwada Irrigation Development Corporation Act, 1998, was not State Government and, therefore, any contracts with it would not amount to contracts being entered into by the candidate with the appropriate Government.

5. The aforesaid decision of the Hon'ble Supreme Court gives a complete answer to the submission sought to be made on behalf of the petitioner. Identical provisions as found in the Act of 1997 can also be found in the Maharashtra Godawari Marathwada Irrigation Development Corporation Act, 1998. On that count, therefore, there is no doubt whatsoever in concluding that the VIDC is not the appropriate Government for the purposes of attracting disqualification under Section 9A of the said Act.

6. In view of aforesaid discussion, the preliminary issue is answered against the petitioner by holding that Vidarbha Irrigation Development Corporation is not State Government for the purposes of Section 9A of the said Act.

5. In view of the answer to the said preliminary issue, Issue Nos.1 to 3 would not fall for adjudication as their adjudication was dependant on the adjudication of Issue No.5 in favour of the election petitioner.

6. On 19-8-2016, the learned Counsel for the petitioner submitted that the petitioner did not intend to lead any evidence on issue No.4. Accordingly, the learned Counsel for the parties were heard on issue No.4.

7. Issue No.4 reads thus:

Whether the petitioner proves that election of respondent No.1 is vitiated on account of change of his name in the Election Voting Machine and there is any violation of Section 33(4) of the Representation of the People Act, 1951?

Shri M.R. Joharapurkar, the learned Counsel for the petitioner submitted that the name of the respondent No.1 the returned candidate was shown in the electoral roll as Bhangadiya Kirtikumar Mitesh . The returned candidate filled in his nomination form in the same name on 27-8-2014. This nomination paper was accepted. However, when the results of the election from constituency No.74 were declared, the name of the returned candidate was shown as Banti Bhangdiya . The name of the returned candidate could not have been different from the name of the said candidate as shown in the electoral roll or as per the nomination form filled in by the said candidate. Reference was made to the provisions of Section 33(4) of the said Act to urge that such change was not permissible. The learned Counsel referred to the averments in paragraph 27 of the election petition. It was, therefore, submitted that on said count, the election of respondent no.1 was vitiated.

8. Shri Anand Parchure, the learned Counsel for the respondent no.1 submitted that there was no violation of the provisions of Section 33(4) of the said Act. He submitted that though the respondent no.1 had submitted his nomination form as per his name appearing in the electoral roll, as the respondent no.1 was also known as Banti Bhangadiya he had made a request to the Returning Officer while submitting his nomination form that his name in the ballot paper should be mentioned as Banti Bhangadiya . The nomination form of the respondent no.1 was duly accepted after which the respondent no.1 was declared elected. According to the learned Counsel, it was permissible for a candidate to be described by the name by which such candidate was commonly described and the same did not result in vitiating his election. It was, therefore, submitted that the election of the respondent no.1 could not be declared to be void on that count.

9. I have heard the learned Counsel for the parties and I have considered their respective submissions. It is not in dispute that the respondent no.1 submitted his nomination form (Exhibit-34) by describing himself as Bhangadiya Kirtikumar Bhangadiya . Such name was appearing in the electoral roll. Alongwith the nomination form, a request was made by the respondent no.1 on 27-9-2014 (Exhibit-41) that his name be shown as Banti Bhangadiya in the ballot paper. The nomination form of the respondent no.1 came to be duly accepted. After the results were declared as per in the return of election, it was shown that Banti Bhangadiya had secured the highest number of votes and was declared elected.

10. As per the provisions of Section 33(4) of the said Act, the Returning Officer has to satisfy himself that the name and electoral roll number of the candidate and his proposer as entered in the nomination paper are the same as per the entry in the electoral rolls. However, the full operation of the electoral roll or the nomination paper shall not be affected if the description with regard to the name of a person or place is shown to be such as commonly understood. Further the Returning Officer is permitted to correct any such misnomer or inaccurate description and he can also direct the same to be overlooked. From the aforesaid provisions, it can be seen that in case a person or place is described in the manner as the same is commonly understood, it shall not affect the full operation of the electoral roll. As per the request made by the respondent no.1, his name in the ballot paper was shown in the manner by which he was commonly understood. Thus, if the Returning Officer is empowered to overlook the description of a person or place if the same is shown by the name commonly understood, it cannot be said that by permitting the respondent no.1 to have his name shown in the ballot paper in the manner in which it was commonly understood, there was any violation of the provisions of Section 33(4) of the said Act. There is no dispute with regard to the identity of the respondent no.1 nor is it the case that the voters were misled by the use of such commonly understood name. It, therefore, cannot be said that by the description of the returned candidate by the name by which he was commonly understood, the provisions of Section 33(4) of the said Act have been violated. In any event, the election of a returned candidate can be declared to be void under Section 100 (1)(d)(iv) of the said Act, if by virtue of non-compliance of the provisions of the said Act, the result of the election has been materially affected. Such is not the case sought to be made out by the petitioner.

11. In view of the aforesaid discussion, Issue No.4 is answered in the negative and against the petitioner. The election of the respondent No.1 is not vitiated on account of change of his name in the Electronic Voting Machine nor are the provisions of Section 33(4) of the said Act violated. Thus, from the aforesaid adjudication and as the preliminary issue as well as the issue No.4 have been answered against the petitioner, it will have to be held that the petitioner has failed in proving that the election of the respondent no.1 is liable to be set aside in the present election petition that has been filed under Section 80 of the said Act. Accordingly, the election petition stands dismissed in terms of provisions of Section 98(a) of the said Act. In view of provisions of Section 119 proviso to the said Act, the respondent no.1 would be entitled to costs from the petitioner.

12. In view of aforesaid, the following order is passed:

Order

Election Petition No.8/2014 stands dismissed. The respondent no.1 would be entitled to costs from the petitioner. This order be communicated to the Election Commission and the Chairman of the State Legislature as per provisions of Section 103 of the said Act.


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