RAJENDRA VITHAL RAUT Vs. DILIP GANGADHAR SOPAL

JUDGEMENT

(1.) THE petitioner had contested from Constituency No.221, the Barshi Assembly Constituency in Solapur District, State of Maharashtra to the elections held for State Legislative Assembly of the State of Maharashtra on 5th September, 1999 and of which the results were declared on 7th October, 1999. The petitioner contested the election as the candidate of a recognized political party (Shiv Sena). The respondent No.1 contested the elections from the said Assembly Constituency as a candidate of Nationalist Congress Party and secured 47,527 votes. There were some other candidates. It is not necessary to advert to them or the votes that were secured as that issue really does not arise. The respondent No.1, secured a lead of 339 votes against the petitioner and was declared elected. In paragraph five of the petition the petitioner has pleaded that the election of the 1st respondent is liable to be set aside under Sections 100(i)(d)(iii) and 100(i)(d)(iv) of the Representation of Peoples Act, 1951 . Section 100(i)(d)(iv) provides that the election of a returned candidate can be declared to be void if there is any non-compliance with the provisions of the Constitution or the Act or of any rules or orders made under the Representation of the People Act, 1951 (hereinafter referred to as the Act). Under Section 100(i)(d)(iii) the election of a returned candidate is to be declared void on account of the improper reception, refusal or rejection of any vote or the reception of any vote which is void.

(2.) THE case of the petitioner as averred in paragraph six of the petition was that one Mr. Waghmare was the Returning Officer and Laxman Gunje was the Assistant Returning Officer. Laxman Gunje was appointed as Thasildar on 1st April, 1996 and had been given additional charge as Chief Officer of Barshi Municipal Council from 31st January, 1998 to 27th June, 1998. Mr. Gunje's son Satish was appointed as a Clerk by the 1st respondent in the District Central Co-operative Bank, Solapur of which the 1st respondent was the a Chairman. The petitioner's case is that as a consequence of this while discharging duties as Chief Officer of the Barshi Municipal Council the Assistant Returning Officer Mr. Gunje was totally under the control of the 1st respondent. In 1996 when the elections were conducted to the Barshi Municipal Council the 1st respondent and his supporters had contested the elections in the name and style of Lokseva Sangh. Shri Nagesh Baban Nanajkar and Mr. Rajendra Rasal had contested the elections as a candidate of the Lokseva Sangh. Nagesh and Rasal had been convicted by the Additional Sessions Judge in Sessions Case No.10 of 1986 and consequently their nomination papers were challenged by the candidates contesting the said Municipal Elections. Gunje in order to oblige the 1st respondent had over-ruled the objections and held that the two nominations to be valid. After the declaration of the results the election of Nanajkar and Rasal were challenged and their elections were set aside. It is also pointed out that on account of high handed action of Laxman Gunje the petitioner had gone on a fast unto death and as a consequence thereof Gunje was removed as Chief Officer of the Barshi Municipal Council. As the petitioner apprehended that Gunje would favour the 1st respondent he had addressed letters to the Election Commissioner not to permit Gunje to take part in the counting at the said elections in his capacity as the Assistant Returning Officer. Reliance is placed on letter dated 4th October, 1999. Inspite of that Gunje was allowed to participate. On account of this participation and bias disclosed by Gunje against the petitioner various illegalities were committed which materially affected the results of the elections.

(3.) IT is also contended on behalf of the petitioner that apart from the above mentioned mischief regarding postal ballot papers played by the 1st respondent in collusion with the Returning Officer and his subordinates, there were other mischiefs played by the Returning Officer and his subordinates in collusion with the 1st respondent. It is pointed out that on Table No.1, Table No.4, Table No.7, Table No.8 and Table No.9 valid votes cast in favour of the petitioner were counted in favour of the respondent No.1 though objections were raised by the counting agent of the petitioner sitting on those tables. It is contended that about 1200 valid votes cast in favour of the petitioner were counted in favour of the respondent No.1. It is then set out that on 7th October, 1999 at about 3.35 p.m. the petitioner had made an application for recount of votes. That was rejected by the Returning Officer. The Returning officer ordered that only invalid votes would be recounted, but did not give any reason for refusing full recount of all the votes. The application, it was contended, was with the Returning Officer and the petitioner sought to rely upon the same. It is the case of the petitioner that for the reasons set out and/or disclosed that the Returning Officer ought to have granted the application of the petitioner for recount. No reasons were assigned by the Returning Officer for rejecting the petitioner's application for a total recount. It is, therefore, prayed that the order for recount may be made by this Court. At any rate 1200 votes cast in favour of the petitioner and which have been wrongly counted in favour of the respondent No.1 be deducted from the total number of votes cast in favour of the Respondent No.1 and added to the votes cast by the petitioner. The petitioner is entitled to be declared elected even if 1162 ballot papers are taken into account. It is, therefore, submitted that the result of the election in so far as it consists of 1st respondent, the returned candidate, has been materially affected by improper reception of postal ballot papers. Similarly, the results of the election were materially affected due to the counting of 1200 valid votes of the petitioner in favour of the 1st respondent. It is for these reasons that the election is liable to be declared void under the provisions of the Act referred to earlier. Hence the reliefs as prayed for.