TANAJI RAMCHANDRA NIMHAN Vs. SWATI VINAYAK NIMHAN

JUDGEMENT

(1.) Leave granted. Elections to the Pune Municipal Corporation were held on 10-2-2002 and 3-3-2002. Election to the ward Prabhag 7a Pashan was held on 3-3-2002. The appellant and respondent No. 1 before us were the main candidates. On 5-3-2002 the counting took place. The appellant was declared elected by a majority of 13 votes. At the counting it was announced that the total number of votes polled were 15,288; 828 votes were invalid, 5 were tendered votes and the total valid votes polled were 14,455. The appellant was declared to have secured 5,607 votes whereas respondent No. l was declared to have secured 5,594 votes. Consequently, the appellant was declared elected.

(2.) On 15-3-2002, respondent No. l filed EP 21/2002 under Section 16 read with section 403 of the Bombay Provincial Municipal Corporations Act, 1949 in the court of Small Causes, Pune challenging the election of the appellant. According to the election petition, the scrutiny and counting of votes were not according to the procedure laid down in the Municipal Corporations Act and the Rules framed thereunder. It was alleged that the ballot papers had first to be segregated with reference to colours used for the particular ward. The colour of ballot paper for Ward No. 7-A was white. Thereafter the ballot papers had to be segregated with reference to each candidate and stacked into bundles containing 25 ballot papers each. It was pleaded that the bundling of the ballot papers each with 25 ballots was not done properly and the bundling was done without showing the individual ballot papers to the candidates or their election agents. The scrutiny of the ballot papers according to symbol marks and the preparing of bundles of 25 each according to the symbols, were going on simultaneously. Since only one counting agent was present at one table - there were in total, ten tables for this Ward - it was not possible for the agent to scrutinize all these procedures going on simultaneously. The election petitioner and her counting agents had taken strong objection to the procedure, that was being followed by the four employees engaged in each table for the counting. The ballot papers were not shown to the candidate or to their counting agents at the time of the actual counting. This failure of the counting staff had materially affected the result of the election. It was doubtful whether a bundle, supposed to contain 25 number of ballot papers, did in fact contain 25 ballot papers. The second ground was that the total number of invalid votes was declared as 828. While identifying the invalid votes, votes validly cast in favour of the election petitioner were wrongly rejected and votes which were really invalid were accepted as valid in the case of the winning candidate. Even though the intention was clear from the markings in the ballot papers, some of them were rejected wrongly and most of the votes rejected were cast in favour of the election petitioner. Thus, the failure to properly identify the invalid votes had also materially affected the election. The counting was interrupted every half an hour for 10 to 20 minutes and because of such interruptions, there was. no proper or steady counting of the ballot papers. The Commissioner of Pune Municipality had announced a prize for the Returning Officer who finished the counting first and announced the result and since the Returning Officers were competing for the prize, the whole process of counting was hasty and it was undertaken without adequate care and this has vitiated the result of the election. The election petitioner further averred that several objections have been raised by the election petitioner and her agents and ultimately a written complaint was also given with a specific request for recounting of the invalid votes. No order was passed on that application. Since the whole process of counting was not proper, the election petitioner was entitled to have a declaration that the election of the winning candidate, the appellant before us, was void and his election set aside and for an order directing a fresh scrutiny and recounting of votes. The other prayers in the election petition are not relevant at this stage. The election petition was resisted by the appellant who disputed the allegations in the election petition and pleaded that there was no irregularity in the counting process and that no ground was made out for interfering with the election. It was also contended that every opportunity was given to the candidates and their counting agents, to watch the counting process and to scrutinize the ballot papers while the counting was going on according to the proper procedure and the election petitioner and her agents, had not raised any objection at the relevant time regarding any of the steps in the process of counting. There was no merit in the election petition and it was liable to be dismissed.

(3.) On behalf of the election petitioner, she got herself examined as PW 1 and examined two witnesses as PWs 2 and 3. On behalf of the appellant before us, the winning candidate, he got himself examined as RW 1. The Small Causes Court, the election Tribunal, framed the issues essentially relating to the alleged irregularities in counting. It proceeded to enter prima facie findings and ordered recounting of votes by a suitable officer to be appointed as Court Commissioner and directed the parties to suggest the name of a suitable person to be named as Court Commissioner and deferring its final judgment until the receiving of the report of the Commissioner. The returned candidate, the appellant before us, challenged the order of the election Tribunal in the High Court of Bombay in WP No. 6067 of 2004. A learned single Judge of the High Court, stating that on an over all view of the matter and the faulty nature of the procedure adopted by the Returning Officer for the counting, no fault could be found with the view taken by the Election Tribunal when it directed the recounting of votes, dismissed the writ petition. The returned candidate has challenged the order of the Bombay High Court in SLP (C) No. 22355 of 2004. The municipal Corporation and the Returning Officer who were also parties to the election petition have challenged the decision in SLP (C) No. 23763 of 2003.