Sanjay Brijkishorlal Nirupam vs Gopal Chinayya Shetty And 21 Others

ep.1.2014(J).doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

ELECTION PETITION No.1 OF 2014

Sanjay Brijkishorilal Nirupam ... Petitioner Vs. Gopal Chinayya Shetty & ors. ... Respondents

Mr.Harshad Bhadbhade with Mr. Saurabh Butala i/b. Ms.Swati D. Sawant for the Petitioner

Mr.B.D. Joshi with Mr.Amarendra Mishra, Ms.Anjali Helekar for the Respondent No.1

CORAM: Mrs.MRIDULA BHATKAR, J.

JUDGMENT RESERVED ON: OCTOBER 16, 2018 JUDGMENT DELIVERED ON: NOVEMBER 30, 2018

JUDGMENT:

1. This Election Petition is filed under section 100(1)(d)(i) and

section 100(1)(d)(iv) of the Representation of the People Act, 1950

praying that the election of Respondent No.1 from 26, Mumbai

North Parliamentary Constituency is to be declared as null and

void and be set aside and also declaring that the petitioner has

secured majority of the valid votes and he is to be declared as

elected in respect of 26, Mumbai-North Parliamentary

Constituency in the 16th Lok Sabha elections held on 24.11.2014.

Page 1 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 :::

ep.1.2014(J).doc

The challenge given in brief is on the point of non-disclosure of the

information regarding assets of Respondent No.1 and his spouse

in the nomination form and in the affidavits resulting into wrongful

acceptance of the nomination form and the affidavit of the elected

candidate.

2. At the outset, Mr.Bhadbhade, the learned Counsel for the

Petitioner has submitted that he is not pressing prayer clause (b)

of para 66, but pressing only prayer clause 66(a). The said prayer

clauses read as under:

"66. ..

(a) That this Honourable Court be pleased to declare the election of respondent no.1 from the 26 - Mumbai North Parliamentary constituency as null and void and the same be set aside.

(b) This Honourable Court be pleased to declare that the petitioner has secured majority of valid votes and be declared as elected in respect of 26 - Mumbai North Parliamentary constituency in the 16 th Lok Sabha elections, held on 24 April 2014 as the Petitioner has secured second highest votes."

The learned Counsel has pointed out that he does not

want declaration that the petitioner is to be declared as

elected but he limits his prayer to the declaration that the

Page 2 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

election of Respondent No.1 from 26, Mumbai-North

Parliamentary Constituency, is null and void and the same to

be set aside.

3. In brief, the case of the petitioner is that the respondent No.1

is the owner of the plot bearing CTS Nos.36, 36(1) to 36(12) at

Borivali when he filled up the nomination form. His company,

namely, Balaji Construction assigned developmental rights to his

wife's company, namely, Jyoti Construction, who constructed a

building on the said plot. The respondent did not mention about it

and about the asses of the construction company, namely, Jyoti

Construction, owned by his wife and son in the nomination form.

The Election Petition is filed on 2 counts - firstly, the election

officer has failed to decide the objections raised by PW2 Subodh

Ranjan and secondly, on improper acceptance of nomination form

of Respondent No.1 by the Returning Officer. Both the objections

are based on non-disclosure of the assets of Respondent No.1

and his wife in the affidavit dated 31.3.2014 (exhibit 12) which was

filed alongwith the nomination form dated 1.4.2014 (exh. 11).

4. The nomination form was filled up alongwith affidavit by

Respondent No.1 on 1.4.2014. Thereafter, immediately on

Page 3 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

7.4.2014, PW2 Subodh Ranjan raised objection about the non-

disclosure of the assets by Respondent No.1. The said objection

ought to have been decided before the acceptance of the

nomination form by the Returning Officer. However, it was not

done and, therefore, the election results are materially affected.

Thus, the case was put up that if the nomination form would have

been rejected on the ground of non-disclosure of the assets, the

respondent would not have been elected, hence, the election is

materially affected.

ARGUMENTS - SUBMISSIONS OF THE PETITIONER

5. The learned Counsel Mr. Bhadbhade by referring to the

nomination form, has submitted that as per the requirement, no

column in the nomination form is to be left blank, but it is to be

filled in even if it is not applicable. He has submitted that if the

petitioner is successful in proving the two facts that there is a

property other than the property disclosed in the name of

Respondent No.1 or his wife and secondly, the said property is not

disclosed, then, the petition should be through. On the point of

wrongful acceptance of nomination form, the learned Counsel

relied on the judgment of the Supreme Court in the case of

Madiraju Venkata Ramana Raju vs. Peddireddygari Page 4 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

Ramachandra Reddy & Ors.1

6. The learned Counsel further argued that Respondent No.1

had knowledge of non-disclosure of the assets and he could have

rectified the said objection by furnishing the detail of his property

i.e., CTS Nos.36, 36(1) to 36(12) at Poisar, Kandivali, Mumbai. In

support of the point on consequences of non-disclosure, he relied

on the judgment of the Supreme Court in the case of Kisan

Shankar Kathore vs. Arun Dattatray Sawant & Ors. 2 The

learned Counsel has submitted that for the building standing on

the said plot, there is no conveyance and the respondent has

admittedly purchased the said property in 2007 by a Deed of

Conveyance dated 7.6.2007. This Deed of Conveyance was

executed with the power of attorney holder of Laxmi Raut, who

was dead. He pointed out that the value of the said property in the

sale deed is shown Rs.1 lakh and, therefore, the stand taken by

Respondent No.1 that the value of the property in the sale deed

was zero and, therefore, he did not disclose anything, is not

sustainable. He submitted that no Occupation Certificate was

granted by the Municipal Corporation to the building due to number

1 2018 SCC Online SC 258 2 (2014) 14 SCC 162

Page 5 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

of irregularities. He further submitted that exhibit 28 dated

23.6.2008 is a document of indemnity bond cum declaration at the

time of surrendering some portion of the said building for DP road

to the Corporation. Respondent No.1 has after surrendering the

road, has constructed three flats on the top floor and is a

beneficiary of this asset. He argued that exhibits 53, 54 and 55

which are the photocopies of the agreement of sale i.e., exhibit 53

from Glorius Constructions of Hemendra Mehta to M/s.Balaji

Construction dated 24.5.2000. thereafter, the assignment of

development rights was given by Respondent No.1 to M/s.Jyoti

Construction i.e., exhibit 54 dated 16.9.2002. These two

documents cannot be said as proved strictly under section 63 of

the Indian Evidence Act. He pointed out the cross-examination of

Respondent No.1 on these documents wherein he has admitted

that these are photocopies of the photocopies where stamps of

2 - 3 notaries are seen. Such secondary evidence is not

permissible under section 63 of the Evidence Act and it is not to be

read. The learned Counsel further argued that if this is so, then, it

is a questionable transaction that how the property i.e., plot

bearing CTS Nos.36, 36(1) to 36(12) came to be transferred from

one hand to other and finally, today, it vests with Respondent No.1

Page 6 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

and his name appears as an owner on the property card. Thus,

the respondent No.1 has avoided stamp duty which is a revenue to

the Government when these two transactions had taken place.

Thus, the transfer of the immovable property is not as per the

Transfer of Property Act.

7. He further submitted that it only reflects the intention of the

transfer but it is not actual transfer. The learned Counsel has

submitted that it only shows how Respondent No.1 has abused his

power and authority to get illegal things regularised and has

constructed the building. He further relied on exhibit 48 i.e., the

Letter of Intent dated 25.6.2009 and exhibit 49 which is the further

Commencement Certificate dated 17.3.2010 and both the

documents stand in the name of M/s.Balaji Construction which is

the sole proprietary firm of Respondent No.1. He further submitted

that Laxmi Raut was dead before the year 2001, which can be

seen from exhibit 39, the letter dated 10.4.2001 written by the

Executive Engineer III to M/s.Balaji Construction regarding starting

of the project. In the said letter, in para 30 and 33, there is a

reference of the will of Laxmi Raut. Thus, Laxmibai was dead. So

the transactions by her power of attorney thereafter are bad in law

Page 7 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

and void.

8. Mr.Bhadbhade made four important submissions:

FIRST - The effect of non-registration of the

agreement is immovable property can be transferred

only by registered deed of conveyance;

SECOND - Though the documents referred to by

respondent No.1 are admitted, they are not properly

proved and, therefore, cannot be read in evidence.

THIRD - The petitioner need not prove that election

is materially affected and without proving this issue,

his petition can be allowed on other three counts.

FOURTH - Non-disclosure of assets or suppression

of the assets in the affidavit which is required to be

presented in Form 26 of the Representation of the

People Act, 1950 amounts to corrupt practice.

9. On the second submission i.e., on proof of secondary

evidence, the learned Counsel relied on the case of Siddiqui vs.

A. Ramlingam3, especially section 63 of the Indian Evidence Act.

3 (2011) 4 SCC 240

Page 8 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

10. The learned Counsel pointed out that the documents in

respect of sale agreements of the plot which are produced by

Respondent No.1, though are taken on record, they are not the

true copies of the original but they are notarised copies of the

notarised documents of the originals and so, such documents have

no evidentiary value.

11. The learned Counsel further relied on the case of Rakesh

Mohindra vs. Anita Beria & Ors.4 wherein it was held that it is

equally well settled that neither mere admission of a document in

evidence amounts to its proof nor mere making of an exhibit of a

document dispense with its proof, which is otherwise required to

be done in accordance with law.

12. On the second submission, the learned Counsel further

submitted that if his argument on the point of secondary evidence

is not found convincing, he has other leg of argument that the

documents which are not notarised are also to be proved by

following proper legal procedure. On this point, he relied on the

judgment in H.K. Taneja & ors. vs. Bipin Ganatra & anr. 5. In the

4 (2016) 6 SCC 483 5 2009(2) Mh.L.J. 855

Page 9 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

said judgment, the learned Single Judge of this Court has

discussed the rules framed under the Notaries Rules 1956 under

the Notaries Act, 1952. As per those Rules, the notaries are

required to maintain a notarial register in a prescribed format and

all the entries are to be made serially with requisite details. If such

notarial register is not produced, the document being unregistered,

is inadmissible in evidence, and therefore, as it is not even prima

facie shown to be notarised.

13. On the third submission, the learned Counsel relied on the

case of Ghanshyam Sarda vs. Sashikant Jha, Director, M/s.J.K.

Jute Mills Company Ltd. & Ors. 6. In the said case, the ratio laid

down in the case of Suraj Lamp and Industries Private Ltd. (2)

through Director vs. State of Haryana & anr. (supra), is relied

and it was held that transfer of any tangible immovable property

can be made only by registered document.

14. In support of the first submission, he relied on the judgment

in the case of Kisan Shankar Kathore vs. Arun Dattatray

Sawant & Ors7. He also relied on the judgment of the Bombay

High Court (Nagpur Bench) in Satish Mahadeorao Uke vs.

6 (2017) 1 SCC 599 7 (2014) 14 SCC 162

Page 10 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

Devendra Gangadhar Phadnis8.

15. On the point whether election is materially affected or not,

the learned Counsel relied on the judgment in Madiraju Venkata

Ramana Raju vs. Peddireddygari Ramachnadra Reddy & Ors.

(supra).

16. On the fourth submission, the learned Counsel relied on the

case of Krishnamoorthy vs. Sivakumar & Ors. 9. In the said

case, the Supreme court explained the concept of undue influence

contemplated under section 123(2) of the Representation of the

People Act, 1950. The learned Counsel argued that though the

petition is filed under section 100(1)(d)(i) and section 100(1)(d)(iv)

of the Representation of the People Act, 1950, he has also made

out the case of corrupt practices under section 100 (1)(b).

Mr.Bhadbhade relied on the affidavit of the petitioner (exhibit 30).

The learned Counsel submitted that whether the petitioner has

complied with the requirement to file such election petition, is

positively answered if the petitioner's affidavit filed under Rule 94A

of the Representation of the People Act, 1950, is read. He relied

on the said affidavit filed by the petitioner. The learned Counsel

8 2016(2) Mh.L.J.613 9 (2015) 3 SCC 467

Page 11 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

submitted that in the affidavit contentions regarding improper

acceptance of the form and non-disclosure of the assets amount to

undue influence leading to corrupt practice, are specifically raised.

Thus, the petition falls under section 100(1)(d)(i) and 100 (1)(d)(iv)

read with section section 100(1)(b) and 123(2) of the

Representation of the People Act, 1950.

17. In the case of Krishnamoorthy vs. Sivakumar & Ors.

(supra), 8 criminal cases were pending against the candidate, out

of which one was disclosed. The Supreme Court held that the

non-disclosure would tantamount to undue influence which is a

facet of corrupt practice as per section 123(2) of the

Representation of the People Act, 1950.

18. Further, the learned Counsel relied on the case of Lok

Prahari through its General Secretary S.N. Shukla vs. Union of

India & Ors.10.

19. Mr.Bhadbhade has argued that it is mandatory on the part of

the candidate to disclose all the material information. What is

material information is not to be decided by the candidate but the

information which is required to be disclosed under Form No.26 of 10 (2018) 4 SCC 699

Page 12 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

the Representation of the People Act, 1950 and as per the

directions by the Election Commission, is a material information.

20. The learned Counsel further submitted that there is a

violation of Article 19(1)(a) of the Constitution of India; so also

under section 33A of the Representation of the People Act, 1950.

The learned Counsel further argued that Chapter on corrupt

practices where section 123(2) is mentioned, was enacted in 1956.

Thus, the Legislature has considered certain acts of undue

influence, to be covered under corrupt practice. The learned

Counsel further submitted that the Supreme Court has now

explained further as to what is meant by undue influence and

corrupt practice as the right to vote is not only statutory but it is

held as to be fundamental right under Article 19(1)(a). He lastly

submitted that in his form, the respondent has not disclosed his

assets but has also maintained eloquent silence in respect of of

the assets of M/s.Jyoti Construction which is a partnership firm of

his wife and his son. He has submitted that when the plot was

developed by M/s.Jyoti Construction, and after giving rehabilitated

tenaments, 25 flats were sold in sale component, M/s.Jyoti

Construction has definitely earned substantial profit. Even though

Page 13 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

it would have been spent from 2003-2004 till 2014 i.e., during the

span of 10 - 12 years, still, the property stands in the name of

Respondent No.1 as no Occupation Certificate is obtained and no

conveyance has taken place and, therefore, it was mandatory on

the part of Respondent No.1 to disclose the said property even

though according to him, the value of the property is zero. He,

therefore, prays that the petition be allowed.

ARGUMENTS OF LEARNED COUNSEL FOR RESPONDENT NO.1:

21. Mr.Joshi, learned Counsel for Respondent No.1, has

submitted that the petition should fail mainly on the ground that the

petitioner could not prove that non-disclosure of the property would

have been materially affected the election. He submitted that

section 33A states only about the disclosure in respect of the

criminal cases and there is no provision in respect of disclosure of

the property or consequences of the failure to disclose the same.

U/s 36, the Returning Officer has to carry out the scrutiny of the

nomination form and under section 36(6), if the nomination form is

rejected, then, the reasons are required to be recorded. Filing of

this petition against the Returning Officer, who is made

Respondent No.22, was a deliberate step taken by the petitioner to

unnecessarily harass the Returning Officer. In fact, no relief is

Page 14 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

claimed against the Returning Officer. U/s 81 states about the

presentation of the petition and has contemplated u/s 81(3) of the

Act, the procedure of the presentation is prescribed.

22. Mr.Joshi, the learned Counsel for Respondent No.1, has

submitted that the Supreme court has in the absence of registered

sale deed, regularised the transactions based on agreement of

sale and General power of attorney in the case of Suraj Lamp and

Industries Private Ltd. (2) through Director vs. State of

Haryana & anr.11.

23. He has submitted that the petition is filed under section 100,

more specifically under sections 100(1)(d)(i) and 100(1)(d)iv) of the

Representation of the People Act, 1950. So, no case is made out

of the election being materially affected and in view of the

language of section 100(1)(d)(i) and 100(1)(d)iv), it is mandatory

for the petitioner to prove its case. He cannot take stand that

though the election is materially affected, he is not pressing the

prayer of setting aside the election and disqualification of

Respondent No.1. The petition is contrary to the Representation of

the People Act, 1950. It is necessary for the petitioner to aver first

11 (2012) 1 SCC 656

Page 15 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

and then, prove how the election is materially affected. The

learned Counsel on this point relied on the case of Lok Prahari

through its General Secretary S.N. Shukla vs. Union of India &

Ors. (supra), (Para 63).

24. He has submitted that it is next to impossible for the

petitioner to prove that election was materially affected because

the petitioner has lost the election by a margin of 4,50,000 and,

therefore, cleverly this point is given up by the petitioner during the

petition. He has submitted that under such circumstances ,

disqualification cannot be proved in isolation but it is always

coupled with proof of election being materially affected.

25. The learned Counsel while meeting the charges of corrupt

practice, has submitted that there is no evidence to show that the

respondent has indulged into corrupt practice. He pointed out the

relevant paras 35, 37, 43 of the petition and has submitted that

there are no substantial pleadings about the corrupt practice.

Rather, the law is contrary to the submissions made by the learned

Counsel for the petitioner on the point of proof of getting election

materially affected.

Page 16 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 :::

ep.1.2014(J).doc

26. He further argued that the learned Counsel while arguing the

facts has pointed out that the property card (exh. 26) pertains to

CTS Nos.36/2 to 36/12. After receiving the nomination forms, the

Returning Officer is required to upload all the nominations so the

nominations are brought in public domain and if the objection is

raised, it may not be rectified after the scrutiny starts. The

verification can be done only and only before the scrutiny and not

after that.

27. He pointed out that the plot bearing CTS Nos.36, 36(1) to

36(12) in fact was not owned validly by this petitioner at the time of

filing of nomination form. He submitted that he relied on the

meaning of ownership and he submitted that right to own includes

right to own, right to sell, right to deal, right to transfer and even

right to destroy the property.

28. He relied on exhibit 55 i.e., agreement dated 1.3.1989. He

submitted that initially the property was owned by Laxmibai Raut.

Thereafter, irrevocable power of attorney in favour of Mahesh

Dadarkar was executed. Thereafter, it was transferred to

Hemendra Mehta of Glorius Constructions on 5.2.1993. Then,

from Hemendra Mehta to M/s.Balaji Construction of Respondent

Page 17 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

No.1 purchased all the development rights including the

irrevocable power of attorney in 24 th May, 2000 by exh. 53 and by

exh. 54, to M/s.Jyoti Construction, which the partnership firm

owned by the wife and son of Respondent No.1 on 16.10.2002 by

notarised agreement of sale. Thereafter, M/s.Jyoti Construction

constructed the entire building and the flats in 2005. The learned

Counsel pointed out that the LOI, IOD, CC were granted in 2001 -

2003 and thereafter, in the year 2005, the society was formed

which is marked certificate of registration exh. 46 on 21.5.2005.

The society was formed under the Maharashtra Registration Act

and the certificate was issued. Thereafter, all the flats of sale

component were sold in the year 2004-2010. Thus, when the

respondent filled up the nomination form, he was not the owner of

the said property when all the flats are sold before 2010 and the

society is registered. All the assessment and other taxes are paid

by the society to the Corporation. Under such circumstances, he

had no right, title or interest in the said plot and the value of the

said plot was zero. If he would have disclosed this property in his

name, then, that would have been considered as a false statement

made by him as the process of development was complete.

Page 18 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 :::

ep.1.2014(J).doc

29. The learned Counsel pointed out that exh. 55 to 79 are the

agreements of sale from 2002 to 2010. All the recitals mentioned

in all these agreements of sale disclose the real nature of the

transaction from Laxmi Raut to M/s.Jyoti Construction. Under such

circumstances, the submissions of the learned Counsel for the

petitioner that the documents which are produced before this Court

are not readable and they are not proved, is to be rejected,

especially in view of section 93 of the Act.

30. The learned Counsel has submitted that the petitioner has

not come to the Court with clean hands if the averments in the

petition are examined and the evidence and cross-examination of

PW2 Subodh Ranjan are seen. He pointed out the relevant portion

in the cross-examination of the PW2 wherein he has stated that he

derived knowledge of the ownership of the property of the plot by

Respondent No.1 from the government website. The theory

placed by Subodh Ranjan is on the finding on this website is

cooked up story and Subodh Ranjan is a planted person by the

petitioner. The petitioner is lying that he was not aware of the sale

of the property and he never visited the site.

Page 19 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 :::

ep.1.2014(J).doc

31. The learned Counsel also pointed out all the relevant

clauses in the agreements entered into with the flat owners by

M/s.Jyoti Construction. He has submitted that all the agreements

are consistent with the provisions of the MOFA wherein the period

of conveyance is specifically mentioned and also the definition of

Promoter is mentioned in section 2 and under section 11 process

of transfer of plot in the name of the society is mentioned and it is

done within the stipulated period.

32. In support of his submissions on MOFA, Mr.Joshi relied on

the judgment of a learned Single Judge of the Bombay High Court

in the case of Madhuvihar Cooperative Housing vs. Jayantilal

Investments & Ors.12 In the said case, the learned Single Judge

has discussed sections 10, 11 and also sections 7 and 7A about

statutory obligations of the promoter-builder and the rights of flat

purchasers. It was binding on a promoter not to take a blanket

consent but express consent in respect of further development of

the society and while discussing section 10, 11, 7 and 7A of

MOFA, it was held that the promoter was statutorily obliged to

execute conveyance in favour of society within a period of four

months. Thus, once the building is complete, possession is 12 2010 6 Bom.C.R. 517

Page 20 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

handed over and the prescribed period for registration of the

society and conveyance accompanying land of the society is over,

then, the promoter is legally precluded from putting up further

construction without consent.

33. On the point of handing over possession, Mr.Joshi relied on

the evidence of RW2 R.S. Maurya, who has deposed about taking

possession of the flats, formation of the society. Mr.Joshi thus

argued that the plot was not the property of Respondent No.1

when he filled up the nomination form and the affidavit.

34. Mr.Joshi has relied on the recent judgment of the Supreme

Court in the case of Public Interest Foundation vs. Union of

India13 and argued that the Supreme court has held the Courts

cannot themselves add disqualification to the returned candidate

and accordingly, the directions are also given by the Supreme

Court to the Legislature to amend the law. He vehemently

submitted that the petitioner should fail on the sole ground that the

petitioner could not prove the case that the election is materially

affected. The petition is filed under section 100(1(d)(i) and 100(1)

(d)(iv) and not under section 100 (1)(b). There is no scope for the

13 Writ Petition (Civil) No.536 of 2011.

Page 21 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 :::

ep.1.2014(J).doc

petitioner to argue his case on corrupt practice which is for

disqualification under section 100(1)(b). The learned Counsel

submitted that election proceeding is of a quasi criminal nature and

so, as the charge is explained to the accused, the respondent

should have a clear idea about the allegations made by the

petitioner and to what he is to reply. He argued that the

submissions of the learned Counsel for the petitioner of attracting

the law laid own in Lok Prahari (supra) are illegal because the

judgment in Lok Prahari (supra) and the directions given by the

Supreme Court in it were not in existence in the year 2014 when

the nomination form and the affidavit in the election which is the

issue in the present petition were filed. The law laid down by the

Supreme Court in the case of Lok Prahari (supra) is in 2017 and

thus, it cannot apply to the present set of facts as it was not a law

erstwhile. He submitted that section 123(2) in respect of undue

influence, thus, cannot be attracted to the present case. In the

case of Krishnamoorthy vs. Sivakumar & Ors. (supra), the

Supreme Court for the first time, held that the criminal

antecedents, if not disclosed by the candidates at the time of filing

of nomination forms, then, it will amount to violation of the

Constitution i.e., the violation of the fundamental right under Article

Page 22 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

19(1)(a) of the Constitution of India.

35. Mr.Joshi relied on the affidavit of evidence of RW2

Ramashankar S. Maurya (exhibit 81) and referred to it on the point

of disqualification. He referred to the written statement (exh. 2)

filed by Respondent No.1 Shri Gopal Shetty, wherein he has

denied all the allegations in respect of corrupt practice in his

written statement.

36. While replying on the point of non-disclosure of the assets of

M/s.Jyoti Construction, which is a partnership firm of the wife of

Respondent No.1, he pointed out the averments made in

paragraphs 23 to 25 of his written statement. He argued that

M/s.Jyoti Construction has carried out only one construction of

Kandivali Siddheshwar CHS Ltd. On CTS Nos.36, 36(1) to 36(12)

at Poisar, Kandivali, Mumbai and the said project was complete in

2005 and thereafter, no scheme of development or construction

was taken up by M/s.Jyoti Construction. In the year 2014, the said

partnership was not in existence. Thus, M/s.Jyoti Construction

was not having any asset in its name, at the relevant time. He

pointed out exhibit 50 and exhibit 51 and has submitted that exh.

51 is the affidavit of evidence of Respondent No.1. He pointed out

Page 23 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

that alongwith his affidavit in chief, he has produced annexure 1,

which is also read as part of his evidence.

37. Mr.Bhadbhade in reply to the point of attracting section

100(1)(b) and bringing the petition under section 100(1)(b) and

applying the same, has argued that once the Court accepts that

the case is made out under section 100(1)(d)(iv), then, by way of

necessary corollary, section 100(1)(b) has to be attracted. The

learned Counsel has further submitted that if in the petition, a case

is pleaded for disqualification under corrupt practice, then only, as

per the requirement under Rule 94A of the Representation of the

People Act, 1950, an affidavit is required to be filed and that is filed

by the petitioner, it shows he has claimed relief u/s 100(1)(b) of the

Act.

38. Mr.Bhadbhade in respect of disclosure of the assets of

M/s.Jyoti Construction, has pointed out exh. 50 and exh. 50/2,

which is the income and expenditure statement of the year from

1.4.2013 to 31.3.2014 of Kandivali Siddheshwar SRA Cooperative

Housing Society Ltd. Alongwith the said statement, the statement

of the names of the defaulters who are liable to pay the

maintainance amount is also produced. Mr.Bhadbhade pointed

Page 24 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

out that flat No.104 stands in the name of M/s.Jyoti Construction

and the maintainance amount, which is recoverable, is shown as

Rs.125,433/-. Mr.Bhadbhade argued that thus, on 31.3.2014,

M/s.Jyoti Construction was a Member of the society holding one

flat No.104 in its name and was liable to pay the amount of

maintainance to the society. The price of the said tenament was

definitely not zero as pleaded by Respondent No.1. It was

necessary for Respondent No.1 to disclose this asset.

39. Mr.Joshi while replying to this point, drew my attention to the

affidavit in chief (exgh.51) and annexure 1 to the said affidavit.

Mr.Joshi has submitted that Respondent No.1 has furnished a list

of all the members in respect of all the flats and where the status

of some flats are shown as PAP and M/s.Jyoti Construction is not a

member of any such tenament.

ASSESSMENT

40. In the present case, Respondent No.1 had filed application

for dismissal of the Election Petition under section 86 of the

Representation of People Act r/w Order 7 Rule 11 of CPC. The

respondent No.1 has made allegations that the petitioner has not

averred the material facts. On the point of disclosure of material

Page 25 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

fact, the pleadings were not complete and there were lapses. The

petition did not disclose the connection between any declaration of

assets and its effect on the election result and hence, it was

prayed that for want of cause of action, the petition is to be

dismissed. After hearing the arguments of both the parties, by

order dated 5.7.2016, this Court held that the petitioner has

broadly pleaded the details of non-disclosure of assets by

Respondent No.1 and, therefore, the challenge under section 86 of

the Representation of People Act and under Order 7 Rule 11 of

Code of Civil Procedure did not sustain. The said order was tested

before the Supreme Court by Special Leave Petition being Special

Leave to Appeal (S) No.25782 of 2016. The Supreme Court

granted interim stay by order dated 26.9.2016. Thereafter, by order

dated 6.3.2018 in the Appeal, the Supreme Court has dismissed

the Appeal and directed this Court to decide the pending election

as expeditiously as possible. Thereafter, Respondent No.1 filed

written statement alongwith documents.

41. After admission and denial by both the parties, the issues

were settled on 19.4.2018. The issues are as under:

Page 26 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 :::

ep.1.2014(J).doc

"i) Whether the petitioner proves that the Returning Officer has improperly accepted the nomination form of respondent No.1?

ii) Does the petitioner prove that respondent no.1 has deliberately suppressed the material information in the affidavit filed along with nomination form or in the nomination form and has not disclosed the property or assets, which is required as per the Representation of People Act, 1950?

iii) Whether the petitioner proves that the election of respondent no.1 is in violation of Section 100 (1)(d)(i) or 100 (1) (d)(iv) and also under Section 36(2) of the Representation of People Act, 1950 and outcome of the election is materially affected?

iv) Whether the election of respondent no.1 is liable to be held void?

v) Whether the petitioner is entitled to get reliefs sought for in the Election Petition?

vi) What order?"

42. The first three issues are the main issues. The issue No.(iv)

and (v) are consequential. The Election Petition is in the nature of

quasi criminal proceeding, though it is conducted as trying a suit.

The burden therefore, is saddled on the petitioner to prove his

case, allegations and also the breach of the legal provisions under

the Representation of People Act by either the Returning Officer or

Respondent No.1. In the election petition, the fundamental

democratic process of legal and fair election is put to the test and

Page 27 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

so, the consequences of the petition are very serious, therefore,

though it is tried like a suit, high degree of standard of proof is

required to be placed on the petitioner to prove the factual matrix

and violation of election law. If the petitioner establishes initially

his facts, then burden will shift on the respondent to explain by way

of his defence.

43. Unless the facts regarding which property was not

disclosed, whether it was required to be disclosed and whether

non-disclosure is of substantive nature are scrutinized, issue No. I

cannot be answered. Issue no. I cannot be decided independently

because it is interlinked with issue No. II, so they need to be

discussed together. Issue no. III invites discussion on legal

pronouncements and the law laid down on election is 'materially

affected'; It is also mixed with issue nos. I and II. Therefore, in

between, discussion of issue no. III is necessary for the purpose of

continuity and clarity of settled principles of law.

44. Issue Nos. I and II :- The nomination form the subject matter

of this issue, marked exhibit 11 was filed alongwith the affidavit in

form No.26. In the petition, the petitioner has asked for the

Page 28 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:14 ::: ep.1.2014(J).doc

following reliefs:

"(a) That this Honourable Court be pleased to declare the election of respondent no.1 from the 26 - Mumbai North Parliamentary constituency as null and void and the same be set aside.

(b) This Honourable Court be pleased to declare that the petitioner has secured majority of valid votes and be declared as elected in respect of 26 - Mumbai North Parliamentary constituency in the 16 th Lok Sabha elections, held on 24 April 2014 as the Petitioner has secured second highest votes."

(c) That this hon'ble court may be pleased to take action against the Respondent no.1 under section.125A of the Representation of Peoples Act for filing false affidavit along with nomination;

(d) ... (e) ..."

45. As pointed out in the opening of the Judgement, the

petitioner maintains prayer clause (a). However, he relinquishes

prayer clause (b) and does not press relief prayer (c).

46. The petition is filed against 22 respondents. Respondent

No.1, being the returned candidate, is the main contesting party.

Respondent Nos.2 to 20 are the other candidates who had

contested the said election but did not succeed. Some of them

represent various political parties and some have contested

Page 29 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

independently. Respondent No.21 is the Chief Election

Commissioner of India and Respondent No.22 is the Returning

Officer. The petitioner did not seek any relief against respondent

No.21. There are specific allegations against respondent No.22.

The Returning Officer, though served, neither appeared nor did he

contest the petition. The petitioner did not call him as witness or

was not called as court witness. The relief sought was not directly

against or affecting these two respondents, so after going through

the petition, it is found that the petitioner has specifically averred in

para 3 of the petition that the nomination form of Respondent No.1

was wrongly accepted by respondent No.22, i.e., Returning Officer

and that amounts to improper acceptance of the nomination

papers and due to this wrong acceptance, the outcome of the

election was materially affected. The allegations of improper

acceptance of the nomination form is on the ground that

Respondent No.1 did not disclose the details of his one property.

47. In the case of Madiraju Venkata Ramana Raju vs.

Peddireddygari Ramachnadra Reddy & Ors. (supra), the

appellant had filed objection in the Parliamentary election for

acceptance of nomination form of Respondent No.1 that he failed

Page 30 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

to sign every page of affidavits in support of his nomination form

and also failed to fill all the columns in the form which is contrary to

the rules prescribed in this regard. The Returning Officer had

rejected the objection on the ground that the objection needed no

consideration. While dealing with the said issue, the Supreme

Court relied on the ratio laid down in the case of Mairembam

Prithviraj vs. Pukhrem Sharathchandra Singh 14, wherein the

exposition in the case of Durai Muthuswami vs. N. Nachiappan

& Ors.15 Is analysed. In the said judgment of Madiraju Venkata

Ramana Raju vs. Peddireddygari Ramachnadra Reddy & Ors.

(supra), the Supreme Court reproduced para 23 of the judgment in

the case of Durai Muthuswami (supra) as under:

"39. ..

23. It is clear from the above judgment in Durai Muthuswami that there is a difference between the improper acceptance of a nomination of a returned candidate and the improper acceptance of nomination of any other candidate. There is also a difference between cases where there are only two candidates in the fray and a situation where there are more than two candidates contesting the election. If the nomination of a candidate other than the returned candidate is found to have been improperly accepted, it is essential that the election petitioner has to plead and prove that the votes polled in favour of such candidate would have been polled in his favour. On the other hand, if the improper acceptance of nomination is of the returned candidate, there is no necessity of proof that the election has been materially

14 (2017) 2 SCC 487 15 (1973) 2 SCC 45

Page 31 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

affected as the returned candidate would not have been able to contest the election if his nomination was not accepted. It is not necessary for the respondent to prove that result of the election insofar as it concerns the returned candidate has been materially affected by the improper acceptance of his nomination as there were only two candidates contesting the election and if the appellant's nomination is declared to have been improperly accepted, his election would have to be set aside without any further enquiry and the only candidate left in the fray is entitled to be declared elected. (emphasis supplied)."

48. In the case of Mairembam Prithviraj vs. Pukhrem

Sharathchandra Singh (supra), there were only two candidates,

out of which one was the returned candidate. In the said case, the

Supreme Court formulated two issues - firstly, whether a false

declaration relating to the educational qualification is a defect of

substantive character warranting rejection of a nomination?

Secondly, whether it is necessary to plead and prove that the result

was materially affected when the nomination of the returned

candidate is found to have been improperly accepted? While

answering the said issues, the Court held that it cannot be

disputed that the election cannot be set aside on the ground of

improper acceptance of a nomination form without a pleading and

proving that the result of the returned candidate was materially

affected. The Supreme Court held that there is a difference

Page 32 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

between the improper acceptance of nomination of a returned

candidate and an improper acceptance of nomination of any other

candidate. If the improper acceptance of nomination is of the

returned candidate, there is no necessity of proof that the election

has been materially affected as the returned candidate would not

have been able to contest the election if his nomination was not

accepted.

49. This ratio is not applicable to the present case. Along with

respondent No.1 the returned candidate, there were other

candidates also. Therefore, the voters did not have only two

options but more choices. So far as acceptance of the form of

returned candidate is concerned, the ratio is applicable to that

extent only. In the present case, there is no false declaration but

there is elimination details of one property, i.e., non-disclosure of

one property. Whether this non-disclosure would amount to

intentional suppression and substantive in nature, can be

ascertained after sifting the evidence. Thus, it is necessary to look

into the evidence whether the acceptance of form (exh. 11) in the

absence of disclosure of the property i.e., plot bearing CTS

Nos.36, 36(1) to 36(12) at Borivali, is improper acceptance?

Page 33 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 :::

ep.1.2014(J).doc

50. The objection was raised by PW2 Subodh Ranjan about

validity of the nomination form of Respondent No.1 and the

Returning Officer should have decided the objection at that stage

only. However, if the objection is not decided by the Returning

Officer because the issue is complicated and it requires some

evidence and nomination form is accepted, then, the said point if

raised in Election Petition, it is to be decided by the Court dealing

with the petition. Thus, that issue cannot be said to be doused

because it was not decided by the Returning Officer.

51. In the case of Kisan Shankar Kathore vs. Arun Dattatray

Sawant & Ors. (supra), the Supreme Court has referred to the

order of the High Court wherein the High Court had accepted the

non-disclosure of liability in respect of outstanding electricity bills

payable to the government undertaking i.e,. MSEB and held that

non-disclosure is substantive defect in the affidavit filed alongwith

nomination form. The High Court held that -

"....The test to hold that the defect is substantive, in my opinion, is not the amount involved, but the conscious act of non-disclosure and suppression of that fact."

52. The Supreme Court has further held thus:

Page 34 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 :::

ep.1.2014(J).doc

"43. When the information is given by a candidate in the affidavit filed along with the nomination paper and objections are raised thereto questioning the correctness of the information or alleging that there is non-questioning the correctness of the information or alleging that there is non-

disclosure of certain important information it may not be possible for the Returning Officer at that time to conduct a detailed examination. Summary enquiry may not suffice. The present case is itself an example which loudly demonstrates this. At the same time, it would not be possible for the Returning Officer to reject the nomination for want of verification about the allegations made by the obejctor. In such a case, when ultimately it is proved that it was a case of non-disclosure and either the affidavit was false or it did not contain complete information leading to suppression, it can be held at that stage that the nomination was improperly accepted. ....."

53. In the case of Satish Mahadeorao Uke (supra), the

respondent did not give the details of some criminal cases pending

against him. The High Court while stating that though as per the

requirement of Form No.26, the respondent has disclosed all the

material information and the offences, held that the criminal cases

of which the Court can take cognisance i.e., cases where the

punishment is more than two years, are to be disclosed alongwith

the nomination form under section 33A(2) of the Representation of

the People Act, 1950. It was further held that any suppression of

concealment or non-disclosure of material information, which is

within the special knowledge, may be treated as a defect of

Page 35 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

substantive character.

54. In the case of Krishnamoorthy (supra), it is held that the

Returning Officer can compel to furnish relevant information. Even,

no column can be kept blank in the form and if it is pointed out by

the Returning Officer, it can be rectified before the Returning

Officer as the citizen has fundamental right to know about the

candidate.

55. Mr.Bhadbhade relied on the case of Jeet Mohinder Singh

vs. Harminder Singh Jassi16 on the point of interpretation of

section 36(6) of Representation of People Act. Section 36(6) is a

relevant section on the point of scrutiny of nomination. Hence,

while scrutinising the legality of the acceptance of the nomination

form, it is necessary to verify whether the procedure laid down

under section 36(6) of the Act was followed or not? Section 36(6)

of the Act says, "Returning Officer shall endorse on each

nomination paper his decision accepting or rejecting the same and

if the nomination paper is rejected, shall record in writing a brief

statement of his reasons for such rejection." Subsection (4) is

also to be considered while dealing with subsection (6).

16 (1999)

Page 36 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

Subsection (4) states that - "The returning officer shall not reject

any nomination paper on the ground of any defect which is not of a

substantial character." It is to be noted that after by Act of 27 of

1956, w.e.f. 28.8.1956, in subsection (4), the word "defect" was

inserted in place of the word "technically". It shows that the defect

need not to be of technical nature but the defect should be of

specific/substantive character. Then only, the rejection of the

application is justified. On the form No.26, (exhibit 11), the

endorsement of the Returning Officer as "accepted" is seen. Thus,

there is a compliance of subsection (6) of section 36 of the

Representation of People Act. However, the objection was raised

by Subodh Ranjan at the time of scrutiny of the form and

admittedly, the Returning Officer has not decided the said objection

at that stage. Such situation is meted with by the Supreme Court

in the case of Kisan Shankar Kathore vs. Arun Dattatray

Sawant & Ors. (supra) Thus, if the objection is not decided by the

Returning Officer, then, it can be raised as a ground by filing the

petition challenging the election. It is made clear in the said

judgment that it may not be possible for the Returning Officer to

take a decision on the objection then and there because it may

involve some debatable or legal issues for which evidence is

Page 37 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

required and which can be decided by the Court itself. Acceptance

or rejection of the nomination form is time bound process. The

lengthy fact finding process, if required, then, it is not possible for

the Returning Officer to deal with it and give reasons for rejection

of the same. It is to be noted that for acceptance, the Returning

Officer is not expected to give reasons for acceptance but for

rejection, he is required to give reasons. Thus, a plain reading of

subsection (6) of section 36 as held in the case of Jeet Mohinder

Singh vs. Harminder Singh Jassi (supra), it is clear that

Parliament has chosen to treat a case of acceptance of the

nomination papers differently from the case of rejection. In the

present case, at the time of scrutiny of the nomination form, neither

the petitioner nor the Respondent No.1 were present.

56. While discussing issue nos. I and II, at this juncture, I advert

to the law laid down by the hon'ble Supreme Court on the point of

undue influence and election is materially affected, which is related

to issue no. III.

57. Issue No.III is reproduced herein for convenience.

iii) Whether the petitioner proves that the election of

Page 38 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

respondent no.1 is in violation of Section 100 (1)(d)(i) or 100 (1) (d)(iv) and also under Section 36(2) of the Representation of People Act, 1950 and outcome of the election is materially affected?

58. The arguments are advanced by the learned counsel for the

petitioner that though there is no specific mention of section 131(b)

of Representation of People Act, the election is challenged on the

ground of corrupt procedure and use of undue influence. Let me

advert to the relevant law.

59. U/s 100(1)(b) of the Representation of the People Act, 1950,

election of the candidates can be declared void on the ground of

corrupt practice if committed by the returned candidate or his

election agent or any other person with the consent of the returned

candidate or his agent. What is a corrupt practice is defined

under section 123 of the Representation of the People Act, 1950.

This section of corrupt practice was amended by the Act 27 of

1956 w.e.f. 28.8.1956. Section 123 is divided into 8 subsections.

The relevant provision is Undue influence under sub-section (2) of

section 123 which is defined as follows:

"(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the

Page 39 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:

Provided that--

(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who--

(i) threatens any candidate or any elector, or any person in whom a candidate or an elector interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or

(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure,

shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;

(b) a declaration of public policy, or a promise of publication, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause."

(emphasis applied)

The proviso to the above section states that a person threatens a

candidate or any electorate or any person with injury of any kind

including social ostracism and ex-communication or expulsion from

any caste or community. Section 123(2)(b) is an exception. Thus,

undue influence requires a direct or indirect interference on the

part of the candidate with the free exercise of any electoral right.

Right to vote is an electoral right though not a fundamental right.

Page 40 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 :::

ep.1.2014(J).doc

This electoral right always walks hand in hand with fundamental

right guaranteed under Article 19(1)(a) of the Constitution of India.

Article 19(1)(a) is about freedom of speech and expression. A

citizen enjoys freedom of expression if he is informed fully. Then,

he should be informed fully about all details of the electoral

process. Thus, it also includes right to vote, which includes right to

know. Right to know is a kangaroo baby right under the right to

freedom of expression. The expression 'of a citizen' can be free if

he is fully informed and is in a position to use the freedom of

choice between various options based on a true and factual

information. Thus, if true, genuine and effective enforcement of

right to vote; rights to information, right to have choice are also to

be respected and are to be facilitated. In other words, unless the

citizen is fully informed about all the true and detailed disclosures

about the criminal antecedents, so also the assets and details of

the property owned by him and his family members, a voter cannot

be said to be well informed and thus, his right to know is scuttled.

The right to have option is fractured and with this, he cannot

enforce his electoral right to vote in true spirit and thus, his

expression is affected adversely and he is deprived of enjoying his

right to freedom of expression.

Page 41 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 :::

ep.1.2014(J).doc

60. The term 'undue influence' is used as an offence under the

Representation of the People Act, 1950. It contemplates

necessarily an interference which may be direct or indirect. Under

the Contract Act, undue influence is defined under section 60. In

Indian Penal Code, the term 'undue influence' is not defined.

However, Chapter XI-A of the Indian Penal Code pertains to

offences relating to elections. The Representation of the People

Act, 1950 is a special statute. Section 171C of the Indian Penal

Code states about using undue influence at elections is an offence.

The said section is as under:

"171C. Undue influence at elections.--

(1) Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election.

(2) Without prejudice to the generality of the provisions of sub-section (1), whoever--

(a) threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or

(b) induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of sub-section (1).

(3) A declaration of public policy or a promise of public

Page 42 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section."

Thus, section 123(2) is largely adopted from Section 171 of Indian

Penal Code. Though the entire petition is under section 100(1)(d)

(iv) as the petitioner has given up the challenge under section

36(2) r/w 100(1)(d)(i) of the R.P. Act, it was argued that the petition

is impliedly also under section 100(1)(b) of the Act. This challenge

is also taken into account.

61. On the point of non-disclosure of assets, the affidavit in

chief of Respondent No.1 (exh. 51) is required to be seen. I rely

on the judgment dated 23.3.2018 in Election Petition No.7 of 2014

(Balram D. Patil vs. Prashant - Ram Thakur) decided by Single

Judge of this Court. In the said case, a similar issue of non-

disclosure of the assets in the nomination form and the corrupt

practice as defined under section 123 of the Representation of the

People Act, 1950 was dealt with by the leaned Single Judge and

the learned Judge has held that considering the facts of the case,

it was a fair and proper disclosure of the financial status of the

respondent and dismissed the petition.

Page 43 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 :::

ep.1.2014(J).doc

62. The learned Counsel Mr. Joshi for the respondent No.1 has

vehemently argued that the judgment in the case of Lok Prahari

(supra) relied on by the learned Counsel is not applicable to the

present case. The learned Counsel has submitted that the

judgment was delivered in the year 2018 and the present case is

of 2014, hence is not applicable. Moreover, if it mentions to do a

thing in a particular manner, then, it is to be done in that way only

irrespective of hurdles or problems faced by the person. He further

argued in the case of Lok Prahari (supra), whatever directions

are given by the Supreme Court cannot be implemented in view of

the recent Full Bench judgment in Public Interest Foundation vs.

Union of India17.

63. Mr.Joshi, on application of the judgment in Lok Prahari

(supra), has submitted that all the observations made by the

Supreme Court cannot be considered as precedent and binding on

the Courts and authority and, therefore, the observation made by

the Supreme Court wherein the Supreme Court has not given

specific directions in respect of the disclosure of the assets and

source of income or assets while filling up the nomination form,

cannot be said a law laid down by the Supreme Court. In support 17 Writ Petition (Civil) No.536 of 2011.

Page 44 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 :::

ep.1.2014(J).doc

of his submissions, he relied on the Supreme Court in the case of

Bharat Petroleum Corporation Ltd. & Anr. vs. N.R. Vairamanii

& Anr.18.

64. On the point of retrospective effect or prospective application

of law laid down by the Supreme Court, the case of Lily Thomas

vs. Union of India19 is very clear. In the said judgment, the

Supreme Court has held thus:

"59. We are not impressed by the arguments to accept the contention that the law declared in Sarla Mudgal's case cannot be applied to persons who have solemnised marriages in violation of the mandate of law prior to the date of judgment. This Court had not laid down any new law but only interpreted the existing law which was in force. It is settled principle that the interpretation of a provision of law relates back to the date of the law itself and cannot be prospective from the date of the judgment because concededly the Court does not legislate but only give an interpretation to an existing law. We do not agree with the arguments that the second marriage by a convert male muslim has been made offence only by judicial pronouncement. The judgment has only interpreted the existing law after taking into consideration various aspects argued at length before the Bench which pronounced the judgment. The review petition alleging violation of Article 20(1) of the Constitution is without any substance and is liable to be dismissed on this ground alone."

(emphasis added)

Thus, the submissions of Mr.Joshi that law laid down by the

18 (2004) 8 SCC 579 19 AIR 2000 SC 224

Page 45 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

Supreme Court has no retrospective effect but only prospective

effect is not correct.

65. In the case of Madiraju Venkata Ramana Raju (supra), the

Supreme Court referred to and culled out the ratio in the case of

L.R. Shivaramagowda vs. T.M. Chandrashekhar (dear) by

LRs.20 and held in para 43 as under:

43. .... wherein the Court observed that in order to declare an election to be void under section 100(1)(d)

(iv) it is absolutely necessary for the election petitioner to plead that the result of the election insofar as it concerns the returned candidate has been materially affected. In the present case, the election petition is in reference to the ground of improper acceptance of nomination form of respondent No.1 - the returned candidate under Section 100(1)(d)(i). Thus, if that plea is accepted and the election of respondent No.1 is declared to be void, it would necessarily follow that the election result of the returned candidate has been materially affected."

66. In the case of Balram D. Patil vs. Prashant - Ram Thakur

(supra), a challenge was given on the ground of improper

acceptance of the respondent's nomination form by the Returning

Officer and corrupt practice as defined under section 123 of the

Representation of the People Act, 1950, committed by the

20 (1999) 1 SCC 666

Page 46 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

respondent. The election under challenge was election to

Maharashtra Legislative Assembly of Panvel constituency which

was held on 15.10.2014. At the time of election propaganda, the

vehicle owned by the company of the family of the respondent was

used it in the election propaganda and the agent is found with 500

envelopes containing Rs.500/- each together with election

pamphlets, voters' list. So, the respondent faced the charge of

offering gratification to the voters. The learned Judge has dealt

with the bribery charges and so also, the non-disclosure of the

assets and has observed as follows:

"26 ..... The purpose of disclosure of assets and liabilities of the candidate is to educate the voters about the financial status of the candidate. It also facilitates the voters to estimate whether assets declared by the candidate have been procured by him out of legitimate or known sources of income. Based on this estimate, the voters have to form a decision on whether or not to elect the candidate. It is this fundamental right of the voter, which casts a corresponding fundamental duty on the candidate to disclose fully and truthfully information regarding his assets and liabilities. This is more a matter of substance than form. If in substance the candidate properly, fully and bonafide discloses a true financial picture, which enables the voters to take an informed decision, merely on some technical error or incidental non- disclosure, the nomination form cannot be rejected or the election cannot be set aside on the ground of improper acceptance of the nomination form. ......"

67. Thus, it is not sufficient for the petitioner to allege why the

assets of M/s. Jyoti Construction and the spouse and dependants

Page 47 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

of respondent no. 1 were not disclosed. But it is necessary for the

petitioner to state and specify which are those assets so that the

opposite party should have a knowledge of what challenge he has

to meet in respect of non-disclosure of the assets. In the present

case, only one property was alleged to be suppressed and no

other details are stated in the petition.

68. Chapter I of the Representation of People Act states about

the nomination of candidates. Under Section 33, the nomination

papers are presented as per the requirement for valid nomination.

Section 36 states about the scrutiny of nomination. Section 33A

was introduced by the Act 72 of 2002 w.e.f. 24.08.2002. Under

section 33A, the voters right to information is acknowledged and

protected. Section 33A makes obligatory for the candidates to

disclose his criminal record about pending cases against him and

so also if at all he is convicted, the record of conviction where he is

sentenced to imprisonment for one year or more. There is no such

specific provision like Section 33A in respect of disclosure of

assets. It is mandatory on the part of the candidate to disclose the

property and assets as per Form 96 prescribed under the Act. In

the case of Lok Prahari (supra) the Supreme Court has

Page 48 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

considered this aspect and the disclosure of the assets is made

mandatory. However, there are no specific directions or special

provision like Section 33A in the Act.

69. In the recent Full Bench judgment in Public Interest

Foundation vs. Union of India (supra), the Supreme Court has

considered the issue whether disqualification for membership can

be laid down by the Court beyond Article 102(a) to (d) of the

Constitution of India and the law made by the Parliament under

Article 102(e). The said issue was further expounded in the

course of hearing and the Court further gave directions about the

decriminalisation of politics. The Supreme Court has extensively

considered the law laid down in the case of Union of India vs.

Association for Democratic Reforms 21 wherein for the first time,

it was clearly observed that freedom of speech and expression

includes right to impart and receive information which includes

freedom to hold opinions. It referred to the case of Resurgence

India vs. Election Commission of India 22, wherein the Supreme

court while summarising the directions has mentioned that 'filing of

affidavit with blank particulars will render the affidavit nugatory'.

21 (2002) 5 SCC 294 22 (2014) 14 SCC 189

Page 49 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

That means the candidate should not leave the particulars blank

but must take minimum efforts to explicitly mark as NIL or NOT

APPLICABLE. A similar principle was voiced by the Supreme

Court in the case of Madiraju Venkata Ramana Raju vs.

Peddireddygari Ramachnadra Reddy & Ors. (supra).

70. In the judgment of Public Interest Foundation (supra), the

Supreme Court has not considered the case of Lok Prahari

(supra) and the directions given in the said case and thus, as on

today, the judgment in Lok Prahari (supra) holds the field. In the

said judgment, a group of conscience senior citizens came

together; registered their association and with their genuine

concern for the democracy of the country, sought directions for a

clean and fair electoral process, which is a foundation of the

democracy. Prayer (ii) of their petition was to 'declare that the non-

disclosure of assets and sources of income of self, spouse and

dependents by a candidate would amount to undue influence and

thereby corruption and as such election of such a candidate can

be declared null and void u/s 100(1)(b) of the 1951 the

Representation of the People Act, in terms of the judgment in

Krishnamoorthy vs. Sivakumar & Ors. (supra). While

Page 50 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

concluding, the Supreme Court referred to the ratio laid down in Krishnamoorthy vs. Sivakumar & Ors. (supra), wherein it is

held that while filing the nomination form, if the requisite

information relating to criminal antecedents is not given, then, it

amounts to attempt of suppression, misguiding and keeping the

people in dark. This attempt undeniably and undisputedly is undue

influence and, therefore, amounts to corrupt practice. In the case

of Lok Prahari (supra), the Supreme Court has dealt with section

123 (2) of the Representation of the People Act, 1950. i.e., corrupt

practice of undue influence. While explaining what is meant by

undue influence, the Court held as follows: It is held that -

"for the very same logic as adopted by this Court in Krishnamoorthy vs. Sivakumar & Ors. (supra), we are also of the opinion that the non-disclosure of the assets and sources of income of the candidates and their associates, would constitute a corrupt practice falling under the heading undue influence as defined under section 123(2) of the 1951 the Representation of the People Act. We, therefore, allow prayer (ii)." (Emphasis added)."

In fact, all the 6 prayers made in the said petition were allowed.

71. In the case of Bharat Petroleum Corporation Ltd. & Anr.

vs. N.R. Vairamanii & Anr. (supra), the Supreme Court while

analysing the application of precedent to the facts of the case has

Page 51 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

held that the judgments of the Courts are not to be construed as

statutes and the observations must be read in the context in which

they appear to have been stated. In the said case, it was held that

- "it may become necessary for Judges to embark into lengthy

discussions but the discussion is meant to explain and not to

define. Judges interpret statutes, they do not interpret

judgements. They interpret words of statutes; their words are not

to be interpreted as statutes". It also relied on the finding given in

the case of British Railway Board vs. Herrington 23 and held as

follows:

"There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."

In view of this, it is to be noted in the judgment of Lok

Prahari (supra), the Supreme court has granted prayer (ii) but has

not given specific directions in respect of implementing the prayer

(2) and thus, there are no further rules till today in respect of

disclosure of source of assets or income of the candidate while

filling up the nomination form unlike Section 33A of Representation

of People Act. The relevant Form 26 requires or expects filling up

23 (1972) 2 WLR 537

Page 52 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

of all the assets and it is mandatory as per the law laid down by

the Supreme Court.

72. In the case of Mangni Lal Mandal vs. Bishnu Deo

Bhandari,24 which is on the point of the proof of section 100 (1)(d)

(i) to (iv), the returned candidate Mangani Lal had challenged the

judgment of the Patna High Court setting aside his election to the

15th Lok Sabha elections. One voter has challenged the election on

the ground that the returned candidate has suppressed the facts in

the affidavit filed alongwith the nomination form that he had 2

wives and dependent children and also did not disclose the assets

and liabilities of his first wife. The challenge was given under

section 100 (1)(d)(iv) of the Act. The said appeal was allowed by

the Supreme Court by setting aside the judgment of the High

Court. In the said judgment, the Supreme Court held that even

though there is a breach or violation of the Rules or provisions of

the Act, there should be specific averments that the election has

been materially affected by such breach of non-observance. Mere

non-compliance or breach of Constitutional or statutory provision

by itself does not result in invalidating the election of the returned

candidate under section 100 (1)(d) (iv).

24 (2012) 3 SCC

Page 53 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

73. The Supreme Court has given the finding that in the

judgment of the High Court, it does not reflect any consideration

whether non-disclosure of information concerning the appellant's

first wife and children and their assets and liabilities has materially

affected the result of the election insofar as it concerned the

returned candidate. Thereafter it held that -

".... The sine qua non for declaring election of a returned candidate to be void on the ground under clause (iv) of Section 100(1)(d) is further proof of the fact that such breach or non-observance has resulted in materially affecting the result of the returned candidate. In other words, the violation or breach or non-observation or non-compliance of the provisions of the Constitution or the 1951 Act or the rules or the orders made thereunder, by itself, does not render the election of a returned candidate void Section 100(1)(d)

(iv). ..."

74. In Shambhu Prasad Sharma vs. Charandas Mahant 25, the

Supreme Court has held that it was necessary to point out that the

petitioner is required not only to aver / allege material facts

relevant to such improper acceptance but to assert further that the

election of the returned candidate had been materially affected by

such acceptance and in the absence of such assertions in the

election petition, the charge cannot be said to be proved against

the returned candidate.

25 (2012) 11 SCC 390

Page 54 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

75. In the case of Kameng Dolo vs. Atum Welly 26, the Supreme

Court has drawn distinction between improper acceptance of

nomination for such improper acceptance of nomination to

materially affect the result of the election and a case of improper

rejection of a nomination which itself is sufficient ground for

invalidating the election that can further the requirement of proof or

material effect of such rejection on the result of the election. The

improper acceptance falls under section 100 (1)(d) and the

improper rejection falls under section 100 (1)(c). In the case of

improper acceptance, it must also be established that the election

has been materially affected by the claimed defect.

The evidence on issue no. I and II

76. Now I will deal with the evidence of witnesses in respect of

issue nos. I and II. The petitioner has contended that Respondent

No.1 has intentionally and deliberately suppressed the immovable

asset i.e., the land bearing No.CTS No.36/1 to 36/12 admeasuring

522.3 sq.mtrs. from the village Kandivali, Taluka Borivali, District

Mumbai Suburban. The respondent has purchased the said

property vide Deed of Conveyance dated 7.6.2007 by a registered

sale deed which was registered with the office of Sub-Registrar at 26 (2017) 7 SCC 512

Page 55 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:15 ::: ep.1.2014(J).doc

Serial No.BDR-6-4737/2007. So, it was pleaded that non-

disclosure of property owned by Respondent No.1 is a violation of

the provisions of Representation of People Act and the Rules

thereunder. So also, it is contrary to the ratio laid down by the

hon'ble Supreme Court in various judgments as discussed above.

Thus, let me address to and assess those disputed documents

alongwith the nomination form (exh. 11) and the affidavit (exh.12).

77. The nomination form (exh.11) was filled in by the candidate

i.e., respondent No.1 and presented before the Returning Officer of

26, Mumbai North Parliamentary Constituency on 1.4.2014. He

has filled in all the clauses. The said form was accepted as a valid

nomination on 7.4.2014 by the Returning Officer. This nomination

form is alongwith Form A. The form is addressed to the Chief

Electoral Officer requesting the allotment of symbol and

authorisation of the candidate and communication by the political

party about the candidature. There is form No.26 as per rule 4 of

the Representation of People Act. The affidavit is to be filled in by

the candidate alongwith the nomination paper before the Returning

Officer. This is the disputed and important document in this

election petition. Respondent No.1 has made an affidavit of his

Page 56 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 ::: ep.1.2014(J).doc

movable properties. In this affidavit, the candidate is required to

give personal details in respect of his Income Tax returns, pending

criminal cases and the proceedings where he is convicted and also

the details of movable and immovable assets. The above

information is part of Part A of the form. Similar details and

description of the property - movable as well as immovable,

owned by the spouse and dependents are required to be

mentioned in the form Part A. Part B is an extract of the details

given in clauses Part 1 to 10 of Part A. At the end, the deponent of

this affidavit is required to make verification. Respondent No.1 has

given all the details in part A and filled up part B and also made

verification that the contents of the affidavit are true and correct to

the best of his knowledge, belief and no part of it is false and no

material has been concealed therefrom. He made further

declaration about no pendency of or conviction in any criminal

case as mentioned in part A and B. Further in clause B of the

verification, he made a statement on oath as follows:

"My spouse or my dependents did not have any asset or liability, other than those mentioned in Item 7 and 8 of Part A and item 8, 9 and 10 of part B above"

Page 57 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 ::: ep.1.2014(J).doc

78. This affidavit was sworn in before a Notary on 31.3.2014.

Thus, chronologically, the affidavit was sworn first and then, it was

presented alongwith the nomination form on 1.4.2014. After

presentation of the said nomination form and the affidavit, one of

the candidates i.e., PW2 Subodh Ranjan, i.e., respondent No.20,

took objection on the same day i.e., 7.4.2014. As per the record,

the Returning Officer accepted the nomination form and affidavit of

Respondent No.1 as valid and did not consider the written

objection of Subodh Ranjan. The said written objection dated

7.4.2014 is marked at exh. 33. Respondent No.1 thereafter gave

written explanation dated 10.4.2014 (exh.13) in the matter of

allegations made by Subodh Ranjan dated 10.4.2014. It was

addressed to Dr.Avinash Dhakne, Returning Officer, 26, Mumbai

North Parliamentary Constituency, where he has stated that the

allegation of non-disclosure of one immovable property in his

affidavit is totally incorrect and it has been alleged without verifying

the true and correct facts. He explained that the land was

purchased by M/s.Balaji Construction, his sole proprietary concern

by unregistered agreement dated 24.5.2000 from M/s.Glorius

Construction Company and then, by unregistered agreement of

sale, in the year 2002, sold the said land to M/s.Jyoti Construction

Page 58 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 ::: ep.1.2014(J).doc

and he has applied for the development of the said plot under SRA

scheme and the property was developed by M/s.Jyoti

Construction. The said land is fully developed and he is neither an

owner nor has share in the said property and, therefore, he did not

disclose the said land in his affidavit as the value of the said land is

zero.

79. Before discussing the fact of non-disclosure, it is necessary

for the petitioner to prove first that the property is owned by

Respondent No.1. If the property is owned by him, then, the issue

of disclosure or non-disclosure will arise. The petitioner in order to

prove the fact of ownership of the plot by Respondent No.1 has

produced certain documents and tendered oral evidence.

Respondent No.1 also in his defence has produced number of

documents to prove that he is not the real owner of the said

property; the property vests with the society, namely, Kandivali

Siddheshwar CHS Ltd. and the value of the said property qua him

is zero.

80. On this property issue, certain facts are admitted and they

can be summarised as follows:

The material property is survey No.128, Hissa No.1, CTS

Page 59 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 ::: ep.1.2014(J).doc

Nos.36 and 36/1 to 36/12, village Kandivali, Taluka Borivali.

Respondent No.1 admitted his transaction in respect of the said

property. Thereafter, his affidavit in lieu of examination in chief on

behalf of Respondent No.1 (exh. 51) is filed by him. In exhibit 51,

he has stated that initially, the said property belonged to late

Jagannath G. Raut. After his demise, the plot was transferred to

his wife i.e., in the name of Laxmi J. Raut. Her name is reflected in

the P.R. Card of the said plot. Laxmi Raut executed an irrevocable

power of attorney in favour of one Mahesh G. Dadarkar by

unregistered agreement of sale dated 4.2.1993 sold the plot to

M/s.Glorius Construction Company (exh. 52 - the signature of

Mahesh Dadarkar). Then, M/s.Glorius Construction Company

transferred the right, title and interest in the said plot by an

unregistered agreement of sale dated 24.5.2000 to M/s.Balaji

Construction which is the sole proprietary concern of Respondent

No.1. One Hemendra Mehta of M/s.Glorius Construction

Company sold the plot to M/s.Balaji Construction. The said

unregistered agreement is exhibit 53. Thereafter, by an

unregistered agreement of sale dated 16.9.2009, Respondent

No.1 transferred the right, title and interest of the said plot in

favour of M/s.Jyoti Construction, a partnership firm of which his

Page 60 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 ::: ep.1.2014(J).doc

wife was a partner. It is marked exh. 54. He has deposed that

initially, the plot was owned by Jagannath G. Raut was transferred

in the name of his wife Laxmibai in the year 1978. Thereafter, the

said plot was declared as a 'slum' by the Government vide

Notification dated 6.4.1978 by the Collector under section 4 of the

Slum Act.

81. M/s.Balaji Construction had submitted a proposal for

development of the plot under SRA scheme. The Letter of Intent

(LOI) was issued in the name of M/s.Balaji Construction on

10.4.2001. The IOD was issued on 1.6.2001 in favour of

M/s.Balaji Construction. Then, it was deposed by Respondent

No.1 that he sold his right, title and interest in the said plot by

agreement of sale dated 16.9.2000 in favour of M/s.Jyoti

Construction and commencement certificate was issued on

5.2.2003 by SRA. The construction work was carried out by

M/s.Jyoti Construction which constructed 7 floors of the building

with rehab. component and sale component and some flats for

Project Affected Persons with a breakup that 14 flats and one shop

were alloted to rehab. component; 6 flats were constructed for

PAPs and handed over to the concerned authorities; and as per

Page 61 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 ::: ep.1.2014(J).doc

the approved plan, 25 flats were of sale component flats which

includes 19 flats and 6 shops. Thus, altogether, 46 tenaments/flats

were constructed in the building. The proposed slum society was

registered under the Maharashtra Cooperative Housing Societies

Act and Certificate of Registration dated 21.5.2005 was issued in

favour of Kandivali Siddheshwar CHS Ltd., marked exhibit 46. The

petitioner has produced assessment bill exhibits 47, 47A and 47B

issued in favour of the society. He relied on the certified copies of

the agreement of sale between the partner of M/s.Jyoti

Construction in favour of the respective flat/shop purchasers. All

these agreements of sale are taken on record and they are

marked exhibits 55 to 79 respectively.

82. The society's secretary R.S. Maurya, who is respondent's

Witness No.2, provided the maintainance bills of the said building

which are marked exhibits 82 (1) to 82 (24) in respect of all

saleable flats and shops. He has further deposed that because of

the sale of the flats, neither M/s.Balaji Construction nor M/s.Jyoti

Construction are holding any direct or otherwise right, interest in

the said property. He further submitted that as per the directions of

the SRA, as it was directed by the SRA, some portion of the plot

Page 62 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 ::: ep.1.2014(J).doc

was set off for the Corporation for the purpose of widening of the

road and in lieu of the set-off, some FSI was given to the owner.

Three flats were constructed on the top floor. However, all those

three flats i.e., 701, 702, 703 are reserved for PAPs and allotted to

the Corporation. However, as per the requirement of the

Corporation, while giving set-off, it was necessary for the

respondent to have a registered sale deed of the said plot and,

therefore, respondent No.1 alongwith Mahesh Dadarkar, the power

of attorney holder of the original owner, entered into a registered

sale deed dated 4.2.1993 in respect of the said plot.

83. This examination in chief is compared with the affidavit (exh.

13 dated 10.4.2014) filed by Respondent No.1 by way of

explanation before the Returning Officer and to be verified. In the

said affidavit, he has stated the same facts and has stated that

there is creation of a registered cooperative society of all the

tenaments. He purchased the said land from the original owner

Laxmibai through the Power of Attorney holder by a registered

deed of conveyance dated 7.6.2007 (exh. 27) and thereafter, he

handed over the part of the land to the Municipal Corporation by

registered deed of indemnity bond in respect of that portion of land

Page 63 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 ::: ep.1.2014(J).doc

on 23.6.2008 (exh. 28). He has stated that thus, as on the date of

filling up the nomination form, though that plot stood in his name,

he had no right, interest in the said property as the entire building

is constructed and the registered society is formed. He has further

stated that he is bound by the provisions of Maharashtra

Ownership of Flats Act and he is legally bound to clear the title and

transfer of the land in favour of the Kandivali Siddheshwar CHS

Ltd. However, for some other reasons, the completion certificate

could not be obtained and, therefore, the issue of transfer of the

land is pending but for all practical purposes, the said society is the

owner of the said land and the building constructed thereupon. He

has further stated that the process of obtaining the occupation

certificate is going on and, therefore, he did not disclose the said

land as owned by him because the market value was zero. This

explanation given by him corroborates his evidence.

84. A point was raised by the learned Counsel for the petitioner

about the continuous possession and ownership of the tenaments

after completion of the building and handing over of the

possession to the society by the Promoter builder. It is an

admitted fact that M/s.Jyoti Construction has completed building in

Page 64 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 ::: ep.1.2014(J).doc

the year 2005 and has handed over the SRA project. Thus, the

building being an SRA project, the members of the building can be

divided into three categories, as per the requirements and

conditions of the Corporation / SRA: - one is SRA / rehabilitation

component, second is as sale component and the third is for PAP.

It appears that in all there are, as per the affidavit, 46 premises

constructed in the said building consisting of 15 rehab. tenaments,

25 sale tenaments and 6 PAP tenaments. Thus, some flats are

reserved as rehab. tenaments, some are to be reserved for Project

Affected Persons and the remaining is for sale i.e., sale tenaments.

The Builder Promoter enjoys a margin of profit in the amount

received on the sale of flats under the sale component but he has

to comply with the rules by keeping reserved the tenaments as per

the given number for the category of rehab. components and PAP.

If there is a dispute in respect of occupation in some members in

respect of rehab. tenaments of PAPs, then, the tenaments cannot

be sold by the builder promoter on the ground that they are allotted

by the Corporation or got occupied. He cannot claim any profit in

such rehab. or PAP tenaments. In the present case, as submitted

by Mr.Bhadbhade, I exhibit 51 i.e., the yearly statement of the

society of 31.3.2014, for the flat No.104, the member's name is

Page 65 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 ::: ep.1.2014(J).doc

shown as M/s.Jyoti Construction and the amount due is shown as

Rs.125,000/-.

85. In the list, which is a part of the examination in chief of

Respondent No.1 i.e., exh. 51, plot No.104, the name of the

Member is shown as PAP and the status is shown as reserved for

PAP. The names and the status of all the 46 flats is also shown.

Shop NO.7 stands in the name of RW2 Maurya. His status is

shown as rehab. which corroborates the evidence that other shops

are from sale component. Alongwith flt No.104, 103, 204, and the

3 new flats on 7th floor i.e., flat Nos.701, 702 and 703 are shown as

PAP. Thus, in this project, in all 6 flats are shows as PAPs, which

corroborates with the evidence of Maurya. As per the evidence of

RW2 Maurya 6 are PAP tenaments, 15 are rehab.- Tenaments and

25 are sale tenaments. The list shows that all rehab. tenaments

and sale tenaments are occupied. All the 6 PAP tenaments are not

occupied. In exh. 50/2, flat No.104 is of PAP, the name of M/s.Jyoti

Construction was shown and the name of M/s.Jyoti Construction

as a member was not shown in the other remaining 5 tenaments of

PAP. it was explained by Mr.Joshi that as a routine, the

maintenance of PAP flats to be paid by the builder till those flats

Page 66 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 ::: ep.1.2014(J).doc

are allotted. It does not mean that the said flat is owned by

respondent No.1 or Jyoti Construction. It is to be noted that no

share certificate is produced to prove ownership which could have

produced by the petitioner. A party cannot prove negative fact. The

respondent no. 1 has denied the ownership. The explanation is

acceptable because it is the responsibility and duty of the officers

of the Corporation to allot the flats reserved for the Project Affected

Persons. As averred by the petitioner, if in absence of allotment,

the flat is owned by the respondent no. 1, the petitioner has to

prove the said fact and if it would have been proved, then it would

have been undoubtedly suppression of material information.

However, the said burden is not discharged by the petitioner.

86. Now I will consider the objections raised by Mr. Bhadbhade

on admissibility of the secondary evidence.

87. In the case of Siddiqui vs. A. Ramlingam (supra), It is held

that even though the secondary evidence is adduced by laying

foundation, it is also to be proved that it is a true copy of the

original. Mere admission of document in evidence does not

amount to the proof of secondary evidence. In the said case, the

Supreme Court referred to the observations made by it in the State

Page 67 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 ::: ep.1.2014(J).doc

of Bihar vs. Radha Krishna Singh27 wherein it was held that -

"40 ... Admissibility of a document is one thing and its probative value quite another - these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil."

In the present case, the documents especially agreements

with flat holders, the maintenance receipts and registered

sale deeds are all proved by respondent No.1 and RW-

Maurya.

88. Respondent No.1 executed an unregistered agreement of

sale dated 16.9.2002 transferring the right, title and interest in

favour of M/s.Jyoti Construction, a partnership firm and the said

agreement of sale was notarised. It is marked exhibit 54.

Respondent No.1 has produced the original copy of the application

for registration of Kandivali Siddheshwar CHS Ltd., which is

marked at exh. 44 dated 19.4.2005 and, thereafter, the Assistant

Registrar of Cooperative Societies issued a letter of registration

dated 2.2.2005 (exh. 45). A copy of the certificate of registration is

marked 46 dated 21.5.2005. He also produced three assessment

27 (1983) 3 SCC 118

Page 68 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 ::: ep.1.2014(J).doc

bills of the society which were issued in favour of Kandivali

Siddheshwar CHS Ltd. Which are dated 28.2.2011, 21.3.2011 and

1.3.2011, which are marked at exhibits 47, 47A, 47B respectively.

He produced original copy of the revised LOI dated 25.6.2009,

which is marked at exh.48. A copy of the further Commencement

Certificate dated 17.3.2010 is produced and marked at exhibit 49.

89. Respondent No.1 had executed the registered sale deed of

the said plot, i.e., the Deed of Conveyance dated 7.6.2007 (exh.

27) with one Mahesh Dadarkar, who was the power of attorney

holder of Laxmibai. Thereafter, he executed a Deed of Indemnity

(exh. 28) dated 23.6.2008 and Articles of agreement on 21.6.2009

with the Corporation, which is marked at exh. 25.

90. Mr.Bhadbhade has taken objection for these exhibited

documents, especially original sale agreements, development

agreements and the agreements of the flat and shop purchasers

with M/s.Jyoti Construction. Mr.Bhadbhade has rightly pointed out

that the agreements which are produced before the Court disclose

2 to 3 remarks of different notaries and, therefore, the submission

that they are the photocopies of the photocopies of the original

Page 69 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 ::: ep.1.2014(J).doc

documents are correct. It appears that while arranging, the papers

of these documents got mixed up and in many agreements, the

sequence is missed and some papers are changed. However, it

can be seen from the evidence of Respondent No.1 and his cross-

examination that he has identified the signature of Mahesh

Dadarkar so also Hemendra Mehta and his signatures appearing

on the documents. He being the sole proprietor of M/s.Balaji

Construction, which was involved in the development and

construction project on the said plot was fully aware of the process

and the transactions or the transfers of the tenements taken in

respect of the said plot and the building and had knowledge of

contents of the documents. It is true that on the basis of

unregistered agreement of sale, no immovable property can be

transferred or no title can be created in respect of that property in

favour of the purchaser.

91. In the case of Suraj Lamp and Industries Private Ltd. (2)

through Director vs. State of Haryana & anr. (supra), the

Supreme Court laid down law about proper mode of transfer and

conveyance and held that a transfer of immovable property by way

of sale can only be by a deed of conveyance (sale deed) and

Page 70 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 ::: ep.1.2014(J).doc

specifically mentioned that no right, title or interest in an

immovable property can be transferred in the absence of deed of

conveyance. However, it granted certain protection to the

transactions under the sale agreement and general power of

attorney which were entered into prior to the date of the judgment.

Hence, the transfer by registered sale deed only is a valid transfer

of the immovable property.

92. The transfers of the plot from Mahesh Dadarkar to

M/s.Glorius Construction Company; M/s.Glorius Construction

Company to M/s.Balaji Construction; M/s.Balaji Construction to

M/s.Jyoti Construction, are all unregistered agreements. However,

the property was developed; shops and flats were sold; people

occupied their respective tenements; registered society was also

formed. However, the conveyance could not be executed for want

of legal and proper title in respect of the said plot. The registered

Deed of Conveyance dated 7.6.2007 also creates question mark

because Laxmibai who had executed power of attorney in favour

of Mahesh Dadarkar had expired long back. Therefore, the

execution of the said sale deed by him in capacity of power of

attorney holder of the deceased, is questionable. The reason

Page 71 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 ::: ep.1.2014(J).doc

given by Respondent No.1 that it was executed for the purpose of

clearing the process of handing over the set-off portion of the plot

to the Corporation, cannot be doubted because further

construction of three flats I..e, 701, 702 and 703 on the 7 th floor

has taken place and he has in fact entered into the agreement of

Deed of Indemnity Exhibit 28 on 23.6.2008 and Article of

agreement Exhibit 25 on 19.6.2009. Thus, it can be said that the

earlier transaction between M/s.Glorius Construction Company

and M/s.Balaji Construction may be legally defective under the

Transfer of Property Act and in violation of Registration Act and the

subsequent sale deed with the power of attorney is also illegal.

However, that is an altogether different issue. Whether the

respondent has constructed the building without title and his

certain acts were illegal, is not the issue in this election petition.

93. Representation of People Act is a special provision to

conduct Election Petitions, so while taking documentary evidence

on record, it is necessary to consider Section 93 of The

Representation of the People Act along with Section 63 of the

Evidence Act. Section 93 of the R.P. Act states as follows:

"Documentary evidence.--Notwithstanding anything in any

Page 72 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 ::: ep.1.2014(J).doc

enactment to the contrary, no document shall be

inadmissible in evidence at the trial of an election petition on

the ground that it is not duly stamped or registered."

94. It is true that Section 93 of R.P. Act facilitates the

admissibility of the documents which are required to be duly

stamped or registered. Under section 63 of the Evidence Act, the

copies prepared from the original by the mechanical processes

compared from the original copies, are permitted. The Section

permits oral account of the contents of a document given by some

person who has himself seen it. The purpose of allowing

secondary evidence is not to close the entry of the evidence which

is otherwise available and can be seen, relied and necessary to

decide the issue. The allowance of secondary evidence facilitates

the process of proving or disproving a fact in the absence of

original documents, so it is a pragmatic provision.

95. In the present case, the contents and purpose of the

documents is deposed by respondent no. 1 and witness Maurya.

Paradoxically, the entire petition stands on a footing that the plot is

owned by respondent no. 1. Whether the transaction is clear or it

Page 73 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 ::: ep.1.2014(J).doc

is defective, is not the issue before the Court. Under such

circumstance, I am not inclined to appreciate the submissions of

the learned counsel on the point of secondary evidence. So also,

considering the oral evidence of the witness respondent nos. 1

and RW-3, it can be safely said that the creation of Siddeshwar

Housing Society, construction of the flats and transfer of the flats

with Agreement to respective flat owners, these facts are proved

by the respondent.

96. The building is constructed as per the approved plan and,

therefore, at this stage, the construction as such cannot be said to

be illegal but the right, title and interest of Respondent No.1 may

be questionable in view of the legal status of Mahesh Dadarkar. If

at all respondent has committed any wrong while constructing, it is

upto the concerned authorities like Corporation to take action.

Whether Respondent No.1 is the owner of the plot when he filled

up the nomination form and what was the value of the said plot is

the key question. By virtue of the sale deed of conveyance (exh.

27), according to him, he became the owner and so his name is

shown on the property card (exh. 14) which is not disputed.

Page 74 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 :::

ep.1.2014(J).doc

97. The respondent no. 1 has admitted that after handing over

the set back area of the land to the Corporation, the balance

portion of the said land stood in his name. He has admitted that

he has not mentioned anything about M/s.Jyoti Construction in his

affidavit. In the cross-examination, he has deposed that he did not

think it was necessary to make a reference of M/s.Jyoti

Construction in his affidavit and he did not make any disclosure of

the property and he has stated that the value of the property was

zero and therefore, he has not mentioned in the property card.

Some questions were recorded in question and answer format as

per the request made by the learned Counsel. The stamps of 2

notaries i.e., one of Mr.Dongardive and another of Mr.M.V. Shinde

are seen on some agreements. The witness also admitted the

stamp of SEO Mr.Ranjit Vora alongwith the stamp of notary and

then, he answered that he was unable to state anything whether

the stamp of notary Shinde is appearing partly on some pages and

no such stamp is seen on the other pages. However, the witness

has further volunteered and clarified the position that after taking

out photocopies of the documents while stapling the documents, 2

agreements got mixed.

Page 75 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 :::

ep.1.2014(J).doc

98. It was submitted on the point of actual assets that whatever

profit M/s.Jyoti Construction has earned, is used or spent and at

the time of filing of the application, M/s.Jyoti Construction was not

in existence and the value of the property was zero. Thus, it can

be inferred that though the property stands in the name of

Respondent No.1 de jure, its de facto value was zero at the time of

filing of the nomination form. Thus, the non-disclosure of the

property, whose value is nil, would not affect the election

materially. Hence the issue no. I and II are answered negative.

99. After considering this evidence, I am of the view that the

property as per the evidence was of no value qua Respondent

No.1 and therefore, he did not disclose it. There is substance in

the explanation of the respondent that as the Cooperative Society

in SRA Project was already formed, then he claiming the plot as an

asset would not have been a correct statement and would have

amounted to grabbing property.

100. It is worth to refer to the ratio laid down by the Supreme

court on the voters mindset. On the point of improper acceptance,

in the case of Shivcharan Singh vs. Chandra Bhan Singh 28, it

28 (1988) 2 SCC 12

Page 76 of 77 ::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 ::: ep.1.2014(J).doc

was held that it is not permissible to set aside the election of the

returned candidate under section 100 (1)(d)(i) on mere surmises

and conjectures if the improperly nominated candidate had not

been elected in the election contest, it is difficult to apprehend or

predicate with any amount or reasonable certainty, the manner and

the preparation in which the voters who exercise their choice in

favour of improperly nominated candidate would have exercised

their votes. The Courts are ill equipped to speculate as to how the

voters would have exercised their right to vote in absence of

improperly nominated candidate especially in the case where

margin of votes is very wide between the returned candidate and

other candidates.. I am of the view that in this Petition, considering

the facts and nature of the property, non-mentioning the said

property in the nomination form and in the affidavit as an asset is

not a substantive defect.

101. Thus, I give finding as follows:

Issue no. I - negative Issue no. II - negative Issue no. III - negative Issue no. IV - negative Issue no. V - negative Issue no. VI - Election Petition is dismissed.

(MRIDULA BHATKAR, J.)

Page 77 of 77

::: Uploaded on - 30/11/2018 ::: Downloaded on - 30/12/2018 11:37:16 :::