AZAMBHAI FAKHIRBHAI PANSARE Vs. GAJANAN DHARAMSHI BABAR

JUDGEMENT

(1.) BY way of this election petition, the petitioner seeks setting aside of the election of first respondent from Haveli Assembly Constituency, Dist. Pune being Maharashtra Assembly Constituency No. 245. For ready reference relevant portions of the pleadings in the petition may be noticed.

(2.) IN para 1 it is stated that elections were held on 11th September, 1999 and the result was declared on 7th October, 1999. In para 2 it is stated that the petitioner was nominated as a candidate of Nationalist Congress Party (NCP) having been allotted a symbol of "clock". The respondent was a candidate of Shiv Sena Party having been allotted a symbol of "bow and Arrow". The details about other candidates are irrelevant. In all there were seven candidates. Paragraph 3 sets out the total number of votes cast and the number of votes polled by each candidate. In para 4 it is stated that the first respondent has adopted, corrupt practice within the meaning of section 123 (3) read with section 100 (1) (b) of the Representation of the People Act, 1951, hereinafter referred to as "the Act". In para 5 it is stated that the petitioner is following Muslim religion whereas the first respondent is following the Hindu religion. . . 80 to 90 per cent of the voters in the Constituency are Hindus. It is stated that the first respondent in order to seek votes in the name of religion has issued a hand bill. In this hand bill the work allegedly done by the first respondent is enumerated. The hand bill also enumerates the promises of future work to be done. An appeal to the voters to vote for the first respondent has been enumerated in the hand bill. In paragraph 6, the petitioner states that in the hand bill the first respondent has alleged that in last election first respondent was elected from the Constituency because of his deep faith in Hindutva. In the hand bill it is further stated that if Mr. Sharad Pawar is going to pamper the muslims by putting up the candidature of a muslim candidate form Nationalist Congress Party, like the petitioner, then the first respondent has a right to seek votes in the name of Hindu religion. It is stated that the first respondent appealed to the voters to vote for him as the first respondent believed in Hindutva and the voters as Hindus should make him successful. In para 7 the petitioner states that the hand bill is shown to have been published by Shri Netaji Chavan, Campaign in-charge of first respondent. The band bill is shown to have been printed by M/s. Balaji Suppliers, Dattawadi, Akurlu, Pune. More than 10,000 hand bills were distributed in the constituency. This fact was told to the petitioner by some of the voters after the election was over i. e. after 11th September, 1999. The details of distribution of the hand bills are as under, 8) Mr. Pramod Mahadev Yande residing at Kirloskar Society, Sector 21, Yamuna Nagar, Nigadi, Pune-411 044 has received the hand bill on 9th Sept. , 1991. The hand bill was received by Yande from the party worker of the first respondent viz. Netaji Chavan who was the campaign Manager of the first respondent. (9) Dr. Rajesh Subhash Mehta received the hand bill on 9th September, 1999 distributed by one Vijay Singhvi. (10) Gautam Chabukswar received the hand bill on 8th September, 1999. The hand bill was distributed by Netaji Chavan. In para 11 it is stated that though the said hand bill is shown to have been published by Netaji Chavan, in fact it is published by the first respondent himself. The hand bills were distributed by the first respondent himself in the constituency. The hand bills were also distributed by Netaji Chavan and Vijay Singhvi with the consent of the first respondent. It is reiterated that Netaji Chavan was the Campaign Manager of the first respondent. It is also stated that Vijay Singhvi had actively campaigned for the first respondent when the first respondent was present. Even assuming that the hand bill was not published by the first respondent, the same was published by Netaji Chavan with the consent of the first respondent. The hand bill is shown to have been printed by M/s. Balaji Suppliers, Dattawadi, as per the orders placed by the first respondent. Thus, the printing, publishing and distribution of the hand bills having offending appeal was done by the first respondent and/or with the consent of the first respondent. In paragraph 12 the petitioner states that due to the appeal in the name of religion of first respondent i. e. Hindu religion and more particularly because the petitioner is following muslim religion, the Hindu voters were impressed to vote for the first respondent merely because he was a Hindu by religion. The petitioner states that the appeal squarely falls within the meaning of section 123 (3) of the Act. Thus the election of the first respondent is liable to be set aside on the ground covered by section 123 (3) read with section 100 (i) (b) of the Act. In paragraph 13 the petitioner states that all the votes secured are tainted votes because of the corrupt practice committed by the first respondent. If all the tainted votes are excluded, then the petitioner has secured the highest number of valid votes. The petitioner is, therefore, entitled to be declared elected from the constituency.

(3.) THE verification of the petition is as follows : i, AZAMBHAI FAKHIRBHAI PANSARE, the petitioner abovenamed, residing at Pune today in Mumbai do hereby solemnly declare that what is stated in paragraph Nos. 1 to 4, 16 of the foregoing petition is true to my personal knowledge and what is stated in the remaining paragraph Nos. 5 to 10, 11, 12 to 15, 17 to 18 is stated on information and by way of legal submissions and I believe the same to be true.