SHAILESH NARAYAN SHINDE Vs. CHETAN VITTHAL TUPE

JUDGEMENT

(1.) Both these appeals are directed against the common judgment passed by the learned Single Judge dated 19 th and 20 th March, 2009, by which the learned Single Judge allowed the writ petitions filed by the respondent No.3 of LPA No.115 of 2009 and that of Pune Municipal Corporation. The learned Single Judge accordingly quashed and set aside the order dated 19 01 2007 passed by the 7 th Additional Judge, Small Causes Court, Pune, in Election Petition No.1 of 2007. The Small Causes Court, Pune, had initially allowed the Election Petition filed by the present appellant. However, the said order is set aside by the learned Single Judge. Hence, the above appeals.

(2.) By an order dated 20 th December, 2006, the Collector of Pune District, declared the elections of the Municipal Corporation for the City of Pune. The said elections were to be held in the month of February 2007. The candidates were to submit their nomination forms till 15 01 2007. The appellant was a duly nominated candidate of the Bhartiya Janata Party. The appellant accordingly submitted his nomination form on 15 01 2007 for the election to the Ward No.42. The Election Returning Officer i.e. respondent No.3, scrutinized the nomination forms on 16 01 2007. During the scrutiny, the Election Returning Officer found that the certificate submitted by the appellant showing his name in the electoral roll of Ward No.45 was not signed. The appellant was present at the time of scrutinizing the nomination forms and requested the Election Returning Officer to keep back the scrutiny of his nomination form, as he can produce valid certificate showing his name in the electoral roll in Ward No.45. The Returning Officer on the request of the appellant, kept back the nomination form and went ahead with the scrutiny of the other nomination forms till 6.30 p.m. on that day. However, till the end of the day, the appellant could not produce valid certificate duly singed by the authorities and therefore, the Election Returning Officer invalidated the nomination form of the appellant in the absence of any evidence in support of his claim of a voter from the electoral roll of Ward No.45, rejected the nomination form of the appellant. Thus, the candidature of the appellant from Ward No.42 was cancelled. Aggrieved by the said rejection of nomination form, the appellant filed Election Petition No.1 of 2007 before the Court of Small Causes, Pune, objecting the process of election and the results of the election of Ward No.42. Respondent No.1 in LPA No.115 of 2009 is an elected Corporator candidate from Ward No.42. The Court of Small Causes, Pune, allowed the said Election petition, thereby declaring that the election of respondent No.1 from Ward No.42 is void and it was held that fresh election shall be held for Ward No.42. Being aggrieved and dissatisfied by the order of the Small Causes Court, Pune, the respondent No.1 in LPA No.115 of 2009 and the Pune Municipal Corporation filed two separate writ petitions before the learned Single Judge.

(3.) Learned counsel appearing for the appellant strenuously submitted that the learned Single Judge has erred in holding that the rejection of the nomination form of the appellant by the Election Returning Officer, was correct. He submitted that in view of the provisions of the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as the said "Act") a candidate contesting election for the Municipal Corporation, is required to submit nomination form as per the prescribed Form A and in that particular format, it is not necessary for the candidate to furnish documents in respect of his residential status. However, in the present case, the appellant along with nomination form, has submitted certificate showing his name in the electoral roll of Ward No.45. However, the said certificate was not signed by any authority. Learned counsel for the appellant further submitted that if the production of such document in support of the contents of the nomination form, was not the requirement, then the Election Returning Officer could not have taken any objection about the proof of such document. Moreover, if it was not the requirement, the said document was infact irrelevant and to submit such irrelevant document, was a minor defect and it could not have been considered by the Election Returning Officer as a substantial defect in the nomination form of the appellant. Learned counsel for the appellant contended that the Election Returning Officer at the time of scrutiny was supposed to have the voters list of all the Wards and from the voters list of Ward No.45, he ought to have verified the position of the appellant as a voter in Ward No.45 or not. Learned counsel submitted that infact the appellant had produced the electoral roll of Ward No.45 and yet, the Election Returning Officer insisted for the production of the certificate, which was not signed by the authority and which ought to have been signed at the time of issuing the said certificate and in the whole process, the appellant was not at fault. It is submitted that the Election Returning Officer being the quasi judicial authority, could not have demanded the proof of such document.