LAXMAN KONDIBA DHOBALE Vs. KALPANA RAMESH NARHIRE

JUDGEMENT

(1.) This is an election petition under Section 81 of the Representation of the People Act, 1951 (henceforth referred to as "RP Act" for the sake of brevity), challenging election of respondent No.1 Sow. Kalpana Narhire, as a Member of Parliament, from Osmanabad (Maharashtra) Constituency No.36 (S.C.), at the elections held in April, 2004, the result of which was declared on 13-05-2004. By the election petition, petitioner has sought a declaration of election of respondent No. 1 to be void. He has also sought a declaration under section 101 of R.P. Act that he is duly elected candidate from the said Constituency, at the challenged election. In the alternative, petitioner prays for directions to hold fresh elections from the said Constituency. For the sake of brevity, I am going to refer the Election Petitioner as "P", the elected candidate - respondent No.1 as "Rl" and the two Noticees as "Nl" and "N2", respectively.

(2.) In this matter, which was assigned to the undersigned after two predecessors recorded "not before me" and in which issues were already framed, recording of evidence was commenced on 21st July, 2006 with deposition of P. P examined in all 16 witnesses and closed the evidence by a purshis (Exh-78) on 07-02-2007. R1 has examined 10 witnesses including her deposition as RW5, between 26-02-2007 to 18-04-2007. The arguments were advanced and heard on 24th and 25th April, 2007 and also on 3rd and 4th May, 2007 under the belief that those were for final disposal of the election petition. Subsequently, all of us (the Court and the Lawyers) realized that the stage of disposal of election petition by final verdict with a reasoned judgment had not reached. During the course of his arguments, advocate for R1 referred to Sections 98 and 99 of the RP Act. Till then, neither of the lawyers had ever invited this Court to issue notices to S/Shri. Dadasaheb Kshirsagar and Balasaheb Thackeray, although petition alleges these individuals to have indulged into "corrupt practice" as defined under Section 123(4) of the RP Act. It is a peculiarity of this election petition that it does not allege the returned candidate R1 herself having indulged into commission of any corrupt practices, but third persons are alleged to have indulged into such practices in the interest of R1. Compliance of Section 99 and more particularly regarding notices as required by proviso (a), as also opportunity of cross examining the witnesses as required by proviso (b) of clause (b) of sub-section (1) of Section 99, was, therefore, inevitable. Reliance was placed by learned counsel for Pupon the judgment of the Honourable Apex Court in the matter of Manohar Joshi Vs. Nitin Bhaurao Patil and anr., 1996(1) SCC 169 : [1996(1) ALL MR 256 (S.C.)], although for some other purpose, in the said decision the Honourable the Apex Court has interpreted the. purport of Sections 98 and 99 of the RP Act. By referring to observations of the Hon'ble Apex Court in the matter of Manohar Joshi (supra) and more particularly as contained in paragraphs 54, 55, 57, 58 and 59, learned counsel for R1 ended his arguments, by referring to Sections 98 and 99 of the RP Act and reminded this court that it will have to name the persons who will be held guilty of having indulged into corrupt practices and before doing so, this court will have to issue notices to them. Observations in the matter of Moreshwar Save Vs. Dwarkadas V. Pathrikar, 1996(1) SCC 394: [1998(3) ALL MR 438 (S.C.)], guided us as regards the course to be adopted, in order to comply with requirement of Section 99 of the RP Act. Consequently, a lengthy order was delivered on 4.6.2007 which did not decide the election petition, but directed the noticees (Sarvashree Dadasaheb Kshirsagar and Balasaheb Thackeray), asking each of them to show cause as to why he should not be named as a person having been guilty of corrupt practice of the nature alleged in the petition. It was directed to be communicated to them that they will have a right to file say and also to cross-examine the witnesses already examined by the High Court and who have given evidence against them, as also of calling evidence in their defence. By the said lengthy order, I have also taken an opportunity to decide issue Nos.2(e) and 5. Issue No.5 was pertaining to maintainability of the Election Petition for non compliance of Section 81(3) read with Section 86(1). My learned predecessor had refused to deal with the issue, as a preliminary issue. R1 had approached the Honourable the Apex Court against the negative inclination shown by my learned predecessor and we had proceeded with the Election Petition, since the Hon'ble Apex Court had not stayed the matter, in spite of approach to it by R1. Since the arguments were advanced, as if for the final disposal of the Election Petition, all the arguments on this issue were submitted and finding on the same was riot required to be deferred for want of notices as per proviso (a) to clause (b) of sub-section (1) of Section 99. The preliminary objections were raised by applications (Exhs. 11 and 16), as also in paragraphs 1-A to 1-D of the written statement and those are dealt with at length in paragraphs 13 and 14 of the said order dated 4.6.2007. Allegation of indulgence into corrupt practice, in the interest of R1, was made against three individuals, Shiv Sena MLA Shri. Shivsharan Birajdar being the third one, apart from the two noticees. Upon considering the material as against Shri. Shivsharan Birajdar in paragraph 11 of the order dated 4.6.2007, it can be realised that the utterances of P, to which Shri. Birajdar referred during his speech in the meeting dated 13.4.2004, were not criticism regarding private character of P. But, it was attributed to P in his capacity as MLA. Since the comments by Shri. Birajdar about conduct of P, were found to be criticism against his character as MLA, finding that Section 123(4) was not attracted, notice as required by proviso (a) to clause (b) of sub-section (1) of Section 99 was not addressed to Shri. Birajdar. In doing so, I have also answered issue No.5, as drafted in the order dated 4.6.2007, in the negative. Needless to say that, issues No.3 and 4, as then framed, shall also stand answered in the negative, so far as those related to Shri. Shivsharan Birajdar. I believe, P, if aggrieved by such findings, which are rendered at interlocutory stage against him, shall have a right to challenge those in the appeal that may be preferred by him in case final decision of Election Petition goes against him, under Order 43, Rule 1-A of the Code of Civil Procedure, 1908 read with Section 87(1) of the RP Act. In order to shorten the length of the matter, I do not intend to repeat the things, at least in details; which are already recorded in the order dated 4.6.2007 ("Earlier Order" for brevity). For these reasons, it is desirable to treat the said order (Exh.101-A) as part and parcel of this judgment and hence, whenever a certified copy of the judgment would be asked for, the applicant should be furnished a copy of this judgment, along with a copy of the order dated 4.6.2007 (Exh. 101-A), as appendix to this judgment.

(3.) The pleadings of P and R1 are referred to in details in paragraphs 2 and 3 respectively of the Earlier Order and hence, I intend to give a brief resume of those hereinbelow. Election in question was declared by Notification dated 24.3.2004, polling took place on 20.4.2004 and the results were declared, after counting, on 13.5.2004. There were 6,37,937 valid votes. P was polled 2,92,787 whereas R1 got 2,94,436 votes. Thus, P was defeated by Rl with a margin of only 1,649 votes. It was the contention of P that all the while he had claimed to be Hindu Mang by caste and he never claimed to be Holar, although both the castes fall in Scheduled Caste category. According to P, in 36 Osmanabad (S.C.) Parliamentary Constituency, 20% voters belong to backward caste and l/4th of those (about 5% of total voters) are from Matang (Mang) community. According to P, Bahujan Majoor Party, of which Nl claims to be National President, did not field any candidate of its own, but fully supported candidature of R1. Corrupt practices, by which the election result was alleged to have been tilted in favour of R1 to the prejudice of election prospects of P, are in three parts. On 5.4.2004, N1 held press conference at 8.30 p.m. at room Nos. 105/106 of Hotel Samarth at Osmanabad, booked in the name of Shri. Shinde of M/s. Niraj Gas Agency, who is brother-in-law, and according to P, Chief Election Campaigner, of R1. At the said press conference, N1 distributed pamphlets titled as <IMG>JUDGEMENT_749_ALLMR2_2009Image1.jpg</IMG> in which N1 made several statements (paras 18(a) to (g) of the petition) of facts which are false and which he believed to be false or did not believe to be true, relating to personal character of P. N1 also distributed to press reporters present, several copies of caste certificate, showing caste of P as Holar (SC-11) bearing serial No.733/1995, dated 27.3.1995, allegedly issued by Tahsildar and Executive Magistrate, Solapur (North). On 6.4.2006, N1 published another pamphlet titled <IMG>JUDGEMENT_749_ALLMR2_2009Image2.jpg</IMG> containing same aspersions as in the pamphlet distributed at the press conference on the earlier day. This pamphlet displayed photographs of Sarvahsree Balasaheb Thackeray (N2) Chief of Shiv Sena, Gopinath Mundhe, President of Maharashtra BJP Unit, Eknath Awhad self proclaimed prominent leader of that party and Dadasaheb Kshirsagar (N2) self proclaimed National President of Bahujan Majoor Party. During 5.4.2004 to 17.4.2004, nearly 35,000/- copies of these pamphlets were distributed at various places within the constituency. On 13.4.2004, a public meeting, as a part of election campaign of R1, was held at Naikwadi Nagar, Osmanabad between 6.00 p.m. to 8.00 p.m. R1 was present on the dais. During his speech, N2 made a statement to following effect;