JAGANNATH RAMCHANDRA NANEKAR Vs. GEMI GOVIND KADAM

JUDGEMENT

(1.) This election petition challenges the by-election of the first Respondent to the Maharashtra Legislative Assembly from Jaoli Constituency in Satara District, on the ground that the petitioner's nomination was improperly rejected by the Returning Officer - the 5th Respondent before me.

(2.) Almost none of the material facts are in dispute. Because of the demise of the sitting member Shri D. B. Kadam, the by-election in question was held on 2-2-1986. The last date for making nominations was 10th January 1986. Scrutiny of nomination papers was fixed for 11-1-1986. The petitioner and Respondents Nos. 1 to 4 were candidates among others. The petitioner filed his nomination on 2-1-1986. He is not registered as an elector in the Jaoli Constituency. His claim is that he was so registered in Shivaji Nagar Assembly Constituency, Pune District. Section 33(5) of the Representation of the People Act, 1951 (hereafter generally referred to as "the 1951 Act") requires that where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall be filed by him either along with the nomination paper or produced before the Returning Officer at the time of scrutiny. In purported compliance of this provision the petitioner filed a certified copy of entries from the Shivaji Nagar Constituency vide Exh. B-l. I will have occasion later to refer to it in more detail. Suffice it to say at the moment that the date of final publication of the rolls as mentioned at the bottom of this certified copy Exh. B-l is 31-1-1984. At the time of receiving the nomination paper of the petitioner, the 5th Respondent brought to his notice that the extract Exh. B-l was not from the roll last published, that is in January 1985. The petitioner was admittedly directed to produce the correct extract at the time of scrutiny.

(3.) It is again not in dispute that on11 th January 1986, the 5th Respondent started scrutiny of nomination papers at 11 a.m. When the petitioner's turn came, he was not present. It appears that after waiting for him for some time, the 5th Respondent rejected his nomination paper around noon on the ground that he bad not complied with the provisions of Section 33(5) 0f the 1951 Act. The nominations of Respondents Nos. 1 to 4 were found in order and accepted. The petitioner reached the office sometime about 1 p.m. and produced a fresh certified copy of the relevant entry in the electoral roll : Vide Exh. D. It shows the date of final publication of the electoral rolls as 29-1-1985. The petitioner lodged an application with the 5th Respondent (Exh. E), requesting him to place on record the fact that he had produced a fresh certified copy, albeit after the 5th Respondent had already rejected his nomination paper.