ARJUNADADA DASHRATH BHUSE Vs. DADAJI DAGADU BHUSE

JUDGEMENT

(1.) This petition has been filed under section 80 of the Representation of the People Act, 1951 (RPA) challenging the election of the respondent from Malegaon (Outer) Assembly Constituency, Maharashtra Legislative Assembly General Elections, 2009, essentially on the ground that the respondent was disqualified from standing for such election under section 100(l)(a) of the RPA and that thus the result of the election was materially affected insofar as it concerned the returned candidate by improper acceptance of his nomination and by non-compliance of the provisions of the Constitution as also the Conduct of Elections Rules, 1961, resulting in the respondent's election being held void under section 100(l)(d)(i) and (iv) of the RPA. It is further contended on behalf of the petitioner that the respondent did not take oath in accordance with Article 173(a) of Constitution of India before a person authorised for taking such oath by the Election Commission in accordance with Schedule III of the Constitution. It is argued that the time of taking oath by the respondent is shown to be incorrect, the oath has not been taken before the authorized officer and that it is taken under Article 84(a) of the Constitution of India and not under Article 173(a) of the Constitution of India, as required.

(2.) It is also contended by the petitioner that the nomination of the respondent was incorrectly accepted without complying with the mandatory provisions of section 33A of the RPA resulting in the right to information of the citizens as also the petitioner being adversely affected and consequently invalidating the nomination of the respondent. It is the case of the petitioner that consequently the acceptance of the nomination was improper and such improper acceptance of the respondent as the returned candidate rendered it void. The petitioner, therefore, claims that consequently the nomination is void under section 100(l)(d)(i) and (iv) as it was improperly accepted without following the provisions of the Constitution, RPA or any rules or orders made under the RPA. It is, therefore, contended that even if the result of the election of the respondent would not materially affect the petitioner, it is required to be declared void under section 100(1 )(a) of the RPA as the improper acceptance of the nomination was of the respondent himself as the returned candidate.

(3.) It is contended on behalf of the petitioner that pursuant to the newly added section 33A of the RPA, consequent upon the amendment of 2002 of the RPA, a candidate standing for election was required to give the specified information set out in the said section in his nomination itself. This relates to disclosing inter alia whether he is accused of any offence punishable with imprisonment for two years or more in a pending case in which a charge has been framed or cognizance has been taken by a Court of competent jurisdiction, whether or not he has been convicted of any offence thereunder and whether or not he has been sentenced to imprisonment for one year or more. Further, under the aforesaid section, the candidate standing for election is required to swear an affidavit verifying the information given as required which the Returning Officer is required to display at a conspicuous place in his office by affixing a copy of his affidavit therefor information of the electors of that constituency. The petitioner claims that an order dated 27th March, 2003 came to be issued inter alia in this behalf by the Election Commission of India being Election Commission's Order No. 3/ER/2003/JS-II, dated 27th March, 2003. Under the said order, the candidates standing for election were to furnish information in respect of such offences under an affidavit. Non furnishing of such information was to result in rejection of the nomination by the Returning Officer. Similarly wrong and incomplete information or suppression of material information would also result in rejection as a defect of substantial character. This was to be if the information was capable of easy verification in a summary inquiry at the time of scrutiny of information under section 36(2) of the RPA. This was in consonance with the right to information provided by Parliament under section 33-A inter alia with regard to pending criminal cases and past involvement of the candidates standing for election so that the electorate would have recourse to the relevant information before they exercise an informed choice to elect their representative.