PATANGRAO KADAM Vs. PRITHAVIRAJ SAYAJIRAO YADAV DESHMUKH

JUDGEMENT

(1.) These appeals are filed under Section 116-A of the Representation of the People Act, 1951, aggrieved by the judgment and order dated 29-1-1988 of the High Court of Judicature at Bombay made in election petition No. 5 of 1996. Since the election petition was dismissed upholding the preliminary objection by the respondent No. 3, we consider it unnecessary to narrate the pleadings and facts in detail. However, the relevant and material facts, which are considered necessary for the disposal of these appeals, briefly stated, are the following.

(2.) The appellant filed election petition No. 5 of 1996 impugning the election of the respondent No. 1 to be void under Section 100(1)(b) and 100(1)(d)(ii) and 100(1)(d)(iv) read with Section 123(4) of the Representation of the People Act, 1951(for short 'the RPA') and sought for further declaration that he should be declared as elected. One Sampatrao Yadav Deshmukh was elected to the Maharashtra State Assembly from Bhilwadi-Wangi Constituency No. 270 of Sangli District in the general election held in the month of March, 1995. He died on 6-5-1996. Consequently, a notification was issued on 13-9-1996 for holding bye-election to the said Constituency. The last date for filing nomination papers was 20-9-1996. On 18-9-1996 the appellant, the respondent No. 1 and one Sampatrao Chavan filed nomination papers. Sampatrao Chavan withdrew his candidature on 23-9-1996, which was the last date for withdrawal of nomination papers. The final list of contesting candidates was published on the same day wherein the appellant and the respondents 1-6 were left in the field. Sampatrao Chavan after withdrawal of his candidature became the election agent of the respondent No. 1. Polling took place on 11-10-1996. After counting the respondent No. 1 was declared elected on 13-10-1996 having secured 72,526 votes being the highest.

(3.) In the election petition, allegations were made against the respondent No. 1, his agents, supporters and his election agent - Sampatrao Chavan. The respondent No. 1 filed his written statement inter alia raising the contention that the election petition was not maintainable for non-compliance of mandatory provisions of Sections 81 and 83 of the RPA and sought for its dismissal. He denied all the material averments made in the election petition. The trial Court framed issues including issues as to the maintainability of the election petition. The respondent No. 1 took out chamber summons No. 66/98 to decide the maintainability of the election petition. After hearing the learned counsel the High Court held that the Issues Nos. 1 and 2 regarding maintainability of election petition cannot be decided at the threshold and the points raised in the said chamber summons were kept open until final hearing of the election petition. Thereafter the trial Court proceeded to examine the witnesses produced by the appellant. The respondent No. 3 took out chamber summons No. 72/98 praying for dismissal of the election petition for non-compliance of Section 82(b) of the RPA inasmuch as Sampatrao Chavan, a validly nominated candidate, had not been made a party to the election petition. The appellant took out chamber summons No. 93/98 seeking permission to amend the election petition so as to delete the allegation of corrupt practice made against Sampatrao Chavan. Both of them were heard together. Chamber summons No. 72/98 was allowed and the chamber summons No. 93/98 was rejected. Consequently the election petition was dismissed by the impugned judgment and order.