MANE KUNAL NARESH Vs. PAWAR VITHAL JYOTI

JUDGEMENT

(1.) THE petitioner challenges in this writ petition the order passed by the Small Cause Court at Bombay in Municipal Election Petition No. 63/97 on 5th May, 1998 wherein the petitioners candidature as Municipal Councillor in Brihan Mumbai Municipal Corporation has been set aside. The election of the Brihan Mumbai Municipal Corporation was held on 23-2-1997. The petitioner among other candidates had contested the election in Ward No. 68 and got elected, by securing 5728 votes. The next defeated candidate, the respondent No. 1 herein, secured 3682 votes. The main ground of the challenge of the petitioners election made by the first respondent before the Court below was that his age was below 21 years at the time of filing his nomination as against the prescribed minimum age to contest the election was 21 years and above. The Small Cause Court on going through the evidence produced by the parties both oral and documentary, found that at the time of filing the nomination for the election, the petitioner was under aged and therefore his election was set aside and the respondent No. 1 declared elected as Municipal Councillor of Ward No. 68, in his place.

(2.) SHRI P. M. Havnur the learned Counsel for the petitioner inter alia contended that the finding by the Court below regarding the age of the petitioner was erroneous. He also submits that the date of birth of the petitioner shown in the birth extract maintained in the Municipal Corporation has been discarded by the lower Court and the lower Court has relied upon the School Register where the petitioner was studying, to decide the age of the petitioner. The learned Counsel for the petitioner submits that according to the birth extract, his date of birth was 1-9-1972 whereas according to the School-Register, which was produced at the instance of the respondent No. 1, petitioners date of birth was shown as 5-5-1973. As per yet another certificate, which was produced at the instance of first respondent was shown that his date of birth was 5-10-1979. The Court below has rightly rejected the school certificate. The Court below also rejected the birth extract, on the ground that certain fabrication is made in the birth extract. I have perused the birth extract and I have seen that the petitioners name was entered in the register only just one day before the filing of the nomination. The lower Court has found that it is not safe to rely upon that birth extracts because of the last minute correction, particularly when it has come out in evidence that there are marked discrepancies in the name of mother of the petitioner. The petitioner did not choose to examine his father who is competent to clear the shadow of doubts regarding his age. However, I am not going into the sufficiency of the ground stated by the lower Court for rejecting the birth extract produced by the petitioner. I need only to say that in exercising the jurisdiction under Article 227 of the Constitution, this Court is not supposed to go into the sufficiency or the efficacy of the reasons stated by the Court below in rejecting birth extract, though it may be more reliable document as against the other evidence to prove ones age. In short, the first respondent has succeeded to prove that the petitioner was suffering from disqualification to file the nomination on the date of filing of the nomination. In view of this, I find no reason on merit to interfere with the finding of the Court below as it suffers from no illegality or infirmity.

(3.) THE learned Counsel for the petitioner has next contended that the preliminary objection raised by the petitioner before the Court below that all the candidates contested in the election, are essential party to the proceedings was illegally rejected by the Court below and therefore the petition ought to have been dismissed on that ground alone. He brought to my attention to fortify his argument, to section 33 (1) of the Bombay Municipal Corporation Act, 1888, (hereinafter called the Act ). He contended that based on this, any petition to challenge the election of the successful candidate would be maintainable only when all the unsuccessful candidates contested the election made party. I have gone through this section carefully and I do not find any such mandate is provided in that section. To appreciate the argument of the learned Counsel for the petitioner, it is necessary here to extract section 33. 33 (1) If the qualification of any person declared to be elected for being a Councillor is disputed, or if the validity of any election is questioned, whether by reason of the improper rejection (by the State Election Commissioner) of a nomination or of the improper reception or refusal of a vote, or for any other cause or if the validity of the election of a person is questioned on the ground that he has committed a corrupt practice within the meaning of section 28-F, any person enrolled in the Municipal election roll may, at any time, within fifteen days from the date on which the list prescribed under Clause (k) of section 28 was available for sale or inspection, apply to the Chief Judge of the Small Cause Court. If the application is for a declaration that any particular candidate shall be deemed to have been elected, the applicant shall make parties to his application all candidates who although not declared elected, have, according to the results declared by the State Election Commissioner under section 32, a greater number of votes than the said candidate, and proceed against them in the same manner as against the said candidate. (1a) The applicant shall whenever so required by the Chief Judge, deposit in the Court a sum of Rs. 500/- in cash or Government securities of equivalent value at the market rate of the day as security for any costs which the applicant may be ordered to pay to other parties to the said application. (2) If the said Chief Judge, after making such inquiry as he deems necessary, finds that the election was a valid election and that the person whose election is objected to it not disqualified he shall confirm the declared result of the election. If he finds that the person whose election is objected to is disqualified for being a Councillor he shall declare such persons election null and void. If he finds that the election is not a valid election he shall set it aside. In either case he shall direct that the candidate, if any, in whose favour the next highest number of valid votes is recorded after the said person and against whose election no cause of objection is found, shall be deemed to have been elected. The aforesaid provisions clearly specify that the applicant shall make party all the candidates who had obtained a greater number of votes. Mr. M. P. Vashi the learned Counsel for the first respondent submits that in view of this section only those candidates who got greater vote than the petitioner alone would be required to be made party in the election petition. In other words if a candidate challenges the election of a successful candidate, he must make parties all the candidates who got greater votes than him. Here the first respondent has made party only the petitioner because he alone got the greater vote in the election than them. In other words he need not make party to the petition the other candidates as parties, who obtained lessor vote than the petitioner before the trial Court.