SHARAD J RAO Vs. SUBHASH DESAI

JUDGEMENT

(1.) THE petitioner Sharad Rao, a Member of the party of Janata Dal contested election to 42, Goregaon Legislative Assembly Constituency, held on February 27, 1990. Respondent No. 1, Subhash Desai, a Shiv-Sena Member, contested in the same constituency against the petitioner. Respondent No. 1 was declared as elected. There were other candidates from other parties who have all been made parties to the petition. The petitioner has filed this petition to set aside the election of respondent No. 1 on the ground of certain corrupt practices as provided under the representation of the People Act, 1951 (hereinafter referred to as the Act, 1951 ). The charges are under section 123 (1), bribery, by way of gift of various articles to the voters, 123 (3), appeal by respondent No. 1 or his agent or any other person with his consent to vote or refrain from voting on the ground of religion or community, 123 (3-A), promotion of or attempt to promote feelings of enmity or hatred between different classes of the citizens of India on ground of religion, race, caste, community, or language, 123 (40, by the publication of a false statement in relation to the character or conduct of the petitioner with a view to prejudice the prospects of his election. In addition to the above, the petitioner has also alleged that thee has been an improper reception of votes which were void and by non-compliance with the provisions of the Constitution or of the said Act of 1951 or of any of the rules or orders made under the Act as provided under section 100 (1) (d) (iii) and (iv ).

(2.) BROADLY, the facts as alleged in the petition are as follows : I will deal with the details of the pleadings as and when each issue is taken up. The allegation in the petition is that the elections to the Legislative Assembly of Maharashtra were declared on January 18, 1990. The last date for filing nominations was February 3, 1990. The last date for the scrutiny of the nominations was February 5, 1990. February 7, 1990, was the last date for withdrawal of candidature and the polling was fixed for February 27, 1990, and the results were declared on March 1, 1990.

(3.) THE petitioners case is that earlier there was a Parliamentary election for the Loksabha which took place on November 24, 1989. Prior to the election to the Loksabha, draft Election Roll of the North Bombay Parliamentary constituency including 42, Goregaon Legislative Assembly constituency was published. There were 1,67,209 voters in the said Goregaon constituency. The petitioner noticed that 38,000 voters were added to the said Draft Roll before the elections for the Loksabha. For the Assembly elections this final roll of the Loksabha was treated as a draft roll and that was published on or about December 17, 1989. Thereafter January 2, 1990, was fixed as the last date for receiving additional applications for enrolment of voters in the electoral roll. The last date for filing objections was January 9, 1990. After scrutiny the final roll was to be published on January 15, 1990. It is the petitioners case that he noticed between December 17, 1989, and January 2, 1990, about 12,000 new applicants had filed their applications for enrolment as voters. The petitioner thought that this was too large a number to be included within such a short span of about fifteen days, particularly because there had already been 38,000 new names entered into the earlier roll just before the Loksabha elections. The petitioner learnt by about January 9, 1990, that many of these applications were not genuine applications. The petitioner and his election agent Mr. Krishnanath Nevrekar made enquiries and collected sufficient material to show that these applicants were bogus applicants and that, therefore, their names could not have been entered in the final roll. However, by January 15, 1990, one Mr. D. U. Peera, the electoral registration officer, finalised the roll and added about 11,057 new names in the final roll. The petitioner, therefore, complained about it to the concerned authorities. After considerable correspondence and meeting the concerned authorities, since there was no sufficient response from the officers concerned, the petitioner was advised to file a writ petition in this High Court being Writ Petition No. 260 of 1990, against the electoral officers and the State of Maharashtra. This was filed on January 24, 1990. The petitioner alleged that the additional voters were all bogus voters and they were all included in the final roll at the instance of Shiv-Sena and respondent No. 1 and that the officers were linked with Shiv-Sena. The petition was posted for admission on January 30, 1990. On that day a statement was made on behalf of the respondents and the officers that they would scrutinise the list of bogus voters submitted by the petitioner and that the same would be done within the constraints of time inasmuch as the date for filing nominations was February 3, 1990. This was on February 1, 1990, and on the said statement, the petition was disposed of. The petitioner had a given a list of 5,002 bogus voters to the officers and the said list was taken on record by the High Court. It appears that the officers in all deleted 2,293 names. The petitioner referred to various documents in support of this contention that many of the applicants were not existing at the addresses given in their applications. He has also given various discrepancies in the application forms and illegalities perpetrated by the officers concerned. I must mention that initially as the petition was filed, the officers were all made parties to this petition as respondents Nos. 11 to 15. However, later on, on an application made by the officers that they could not be impleaded as party-respondents in an election petition, their names were deleted. However, at that point of time I had made it clear to the parties that if necessary the officers could be called as Court-witnesses. Accordingly later on, two of the officers viz. , Dawoodbhai Usman Peera, Assistant Registration Officer (C. W. No. 1), and Gangaram Raghunath Nachankar, Registration Officer (C. W. No. 2), have been examined as Court-witnesses. The petitioner says, out of these remaining additional voters about two thousand and odd voters have cast their voters at the time of the election. The petitioners case is that those persons could to have been allowed to cast their votes. The petitioner lost the election by a narrow margin. Respondent No. 1 secured 47,021 votes while the petitioner who stood second secured 46,426 votes, the margin being of only 595 votes. The petitioner submits that by virtue of this improper reception of votes, he was prejudically affected.