KANHAIYALAL VISHINDAS GIDWANI Vs. ARUN DATTATRAY MEHTA

JUDGEMENT

(1.) THE petitioner was a candidate at elections held for filling in 10 seats to the Maharashtra Legislative Council Notification for filling the vacancies was issued on 30th May, 1998. The elections were held on 18th June, 1998. Counting of votes commenced on the same date. Thereafter the results of the election have been declared. The petitioner did not succeed in getting the requisite number of votes. He stood at Serial No.11. The respondent Nos.1 to 10 have been declared elected. The petitioner has challenged the elections of respondent No.1, an independent candidate, on the ground that his nomination form was improperly accepted by the Returning Officer. It is his contention that the proposers who proposed the candidature of respondent No.1 had signed blank nomination forms. It is further averred that their signatures on the blank nomination form were intended only for the Congress nominee and not for 1st respondent, who had fought the elections as an independent candidate. It is contended that the law contemplates that the proposers who nominate a candidate must be aware and conscious of the fact that they are sponsoring a particular candidate. The nomination paper signed by such proposers when it was blank and if subsequently filled in by putting the name of the candidate, cannot be said to be valid. It is, therefore, averred that the 1st respondent was not a validly nominated candidate to contest the said elections. The petitioner was not aware of these facts at the time of scrutiny and as such could not then raise the objections. The election of the 1st respondent, therefore, is void ab initio. It is then averred that the petitioner was 11th in the serial number order of preferences. If the 1st respondent's nomination paper would have been reflected being not valid the petitioner would have been declared elected as a member of the Maharashtra Legislative Assembly. Thus it is contended that the results of the said elections in so far as it concerns the election of 1st respondent as a member of the Legislative Council is materially affected. On those averments the petitioner prayed that the election of the 1st respondent be set aside and that the petitioner be declared as elected in the said election as member of the Maharashtra Legislative Council. In the alternative it is prayed that fresh elections be held for the 10 seats to the Legislative Council.

(2.) THE Respondent No.1 has filed his written statement. It is firstly contended that the petition has been filed after the period of limitation prescribed by Section 81 of Representation of Peoples Act, 1951, hereafter referred to as the Act had expired and hence barred by limitation. The petition, it is contended, should be dismissed on this ground alone. In Paragraph 2. it is denied that there are various omissions as set out in the said paragraph. In the light thereof the petitioner has committed breach of the mandatory provisions of Section 81 read with Sections 83 and 86 of the Representation of Peoples Act. The petition, it is contended, must be dismissed on that ground also. It is contended that the petitioner was present at the time of scrutiny of nomination, but had not raised any objections. The petitioner, therefore, was estopped from challenging the same. In paragraph 10 it is denied that the 10 Congress M.L.As. specified in paragraph 8 of the petition signed the nomination papers of respondent No.1 in blank. The 10 Congress M.L.As., it is contended, signed the nomination papers knowing fully well that the said nomination papers are of the respondent No.1 as the candidate. The 10 Congress M.L.As. after signing the respondent No.1's nomination papers handed over the same to the Leader of the opposition Mr. Madhukarrao Pichad, the President of the M.P.C.C., respondent No.3 herein. The nomination papers, it is averred, was received by respondent No.1 from Shri Ranjit Deshmukh on 6th June, 1998. It is averred that no case is made out under Section 100(1)(d)(i) or any of the provisions of the Act. It is denied that the nomination paper was improper and not valid. In paragraph 17 it is denied that the respondent No.1 had used any blank nomination forms signed by the 10 M.L.As. without his name being filled in at the material time. The 10 M.L.As., had signed the nomination papers after the name of respondent No.1 was filled in. It is denied that the election of the respondent No.1 is liable to be set aside. There are general denials in so far as the rest of the contents of the petition. Respondent No.7 has also filed his written statement. It is contended that the election petition has not been filed within 45 days as prescribed under the Representation of Peoples Act, 1951. The petitioner, it is contended, has not complied with certain mandatory requirements of the Representation of Peoples Act, as signature, etc. are missing on various Annexures and documents. It is averred that it is not true and correct that the petitioner would have got elected if the nomination of respondent No.1 was rejected. It is averred that no allegation of malpractice or irregularities are made against the said respondent No 7. There is also no prayer for setting aside the elections of respondent No.7. On that count the petition. it is contended. should be dismissed.

(3.) AT the outset it may be pointed out that no evidence has been led on Issue No.3 and consequently the said issue is answered in the negative.