NARAYAN JOTIBA SHELKE Vs. RAMESH MANIKRAO BHONGADE

JUDGEMENT

(1.) BY this writ petition, the judgment passed under section 428 of the City of nagpur Corporation Act (hereinafter referred to as the Act ) by the 8th Additional District Judge, nagpur setting aside the election of respondent no. 3 Naravan Jotiba Shelke is called in question election to the post of a Councillor was held on 25-2-1992. The petitioner herein and respondent no. 3 in the original election petition was one of the candidates contesting from Ward No. 28. There were number of other candidates in the field. The election notification was published on 25-1-1992. The polling and counting was held on 25th and 26th february, 1992 and the result was declared on 27-2-1992. It was also published in the gazette. In this election, the present petitioner Narayan jotiba Shelke was declared to have been elected, he having secured the maximum number of votes.

(2.) THIS election was challenged by way of an election petition for which a provision is made in section 428 of the Act wherein such election petitioner are tried by the District Court. There are number of grounds on which the election was challenged. This election was challenged by one ramesh Manikrao Bhongade the petitioner in the original election petition and respondent No. 1 in the present writ petition. He had challenged the election on number of grounds. He alleged mainly that there was non-compliance with the Rules framed for the elections to the post of councillors of the Nagpur Municipal Corporation. He alleged that contrary to the Rules, common symbols were allotted to some candidates merely because they were recommended by a particular political party. This, according to him, was illegal. His further contention was that one satish Chaturvedi who was husband of a contesting candidate from ward No. 41 had influenced the entire process and the results. The election petitioner made a grievance that he should have been allotted Mashal (torch) as the electoral symbol but that was not given to him wrongly. He also alleged irregularities in allotment of the symbol. He also alleged that there was irregularity in the voters list also. On that count also, he alleged that there was a possibility of bogus voting since more voters were shown than the inhabitants residing in that particular area. So also according to him some names were found commonly in more than one wards. He also complained about the polling stations and the list of voters who cast their votes in a particular polling station. In paragraph 19 he alleged that the ballot papers used for the elections were illegal since there were no counterfoils to the ballot paper for obtaining signatures and for reconciliation. According to him, ballot papers were also not signed by the polling Officers and, therefore the ballot papers were liable to be rejected. According to him, further the total number of ballot papers found in the ballot box did not tally with the ballot papers issued. Some ballot papers were found missing and, therefore, according to him the entire process of conducting the election was illegal and, therefore, the result of the election of Ward No. 28 was liable to be set aside. He also found fault with the counting process and alleged that since there were 8 tables, his agents could not remain present at all the tables. In paragraph 22, he alleged that respondent No. 2 the elected candidate had on 24-2-1992 started the work of boring well in the ward. There is no further allegation made in this paragraph. Paragraph 23 is rather important for the purposes of this petition, which is being quoted as under :

(3.) AFTER the notices were served, the present petitioner Narayan Jotiba Shelke filed his written statement and disputed each and every allegation. In his reply to paragraph 29, he denied that the ballot papers which were used for election were illegal and that there was any infraction of the rules in not maintaining the counterfoils or the signatures not being put on the same. He pointed out that there were rules provided for conducting the election and the ballot papers were in keeping with the Rules. As regards the paragraph No. 23, he contended that it was he who contested the election and he was also known as Baba Shelke. He contended that there was nothing wrong if popular name was published as contended by the petitioner. On this count, he traversed the pleadings in paragraph No. 23 of the election petition. By way of special pleadings in paragraph 32, the present petitioner, i. e. respondent No. 3 before the trial court alleged that the allegations were too general, that there were no material particulars in the petition, that there were no specific examples which the law postulated. He also complained that the election petitioner did not join the proper parties inasmuch as the persons against whom allegations were made were liable to be joined as the parties. In paragraph 33 again he reiterated that there were no material facts stated which was sine-qua-non for challenging the election of a returned candidate. He pointed out that though the complaints of impersonation were made, even the names of those persons who were impersonated had not been supplied in the election petition. The most striking feature is that thereafter ordinarily the parties should have been directed to file their documents and the Court should have framed the issues on the basis of the pleadings in the election petition and traversed in the written statement. In the name of issues, the learned trial Court framed the following issues :