(This Witness took away
5 months, as she remained absent for many dates)
1 EP1.sxw
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
O.O.C.J.
Election Petition NO. 1 OF 2009
DEPOSITION OF P.W.No.2
I do state on solemn affirmation as under :
Name :Dr.Ashwini Joshi
Age :30 years
Occupation : CEO Zilla Parishad, Sindhudurg
Residential Address : Official Bunglow,
CEO , Oroas, District
Sindhudurg.
EXAMINATION IN CHIEF OF THE WITNESS NO.2 OF
THE PETITIONER
BY THE PETITIONER APPEARING IN PERSON
I am a Dentist by profession. I joined
Indian
Administrative service in the year 2006. At
present, I am
posted as C.E.O of the Zilla Parishand,
Dist. Sindhudurg.
For the first time I acted as a Returning
Officer for the
election of Mumbai North West Parliamentary
Constituency. I
have read the election petition after the
summons was
served to me. I have not discussed the
election petition
with Mr.Mahesh Warbhuvan. I was not given
any training by
the Election Commission. (the witness
volunteers that as
revenue officers are supposed to act as
Returning Officers,
no special training is given to us.) I have
carefully
studied the handbook for the Returning
Officers and the
2 EP1.sxw
handbook for the candidates and the
Representation of
People Act. A candidate is required to file
nomination form
and attachments thereto as provided in law.
The candidate
is required to file affidavits. However, I
do not recollect
the number of affidavits required to be
filed.
Q. Apart from nomination form and
affidavits, whether
candidate is required to file any other form
?
Ans. Formats are provided in the relevant
handbook.
2) At the time of scrutiny, Returning
Officer is supposed
to go through the nomination form and
consider the
objections raised by the other candidates.
It is the duty
of the Returning Officer to verify whether
there are
defects of substantial nature in the
nomination form.
. The defects of substantial nature in the
nomination
form are not laid down in the Representation
of People Act
and the same are set out in the hand book in
the form of
illustrations. I have received instructions
from the
election commission to make video recording
of proceedings
of filing of nomination form and the
scrutiny.
. On the last date fixed for filing
nomination form,
Returning Officer is supposed to prepare a
list of persons
who have filed the nomination forms.
3 EP1.sxw
3) I was conversant with clause no.15.1 of
the hand book
for the Returning Officers. I am conversant
with clause 7
of chapter IV of the handbook for the
candidates. I am
conversant with clause 7 of chapter VI of
the hand book for
the Returning Officers. I was aware that
after nomination
form is rejected, a copy of the order
rejecting the
nomination form has to be made available
immediately. I do
not recollect whether the copy is to be
provided free of
costs. I do not exactly remember when the
scrutiny of
nomination papers started. The order of
acceptance of
nomination forms was passed at 3.35 p.m.
4) The witness is shown a xerox copy of the
affidavit on
page 99 of the election petition. I say that
the affidavit
is of the petitioner. The affidavit on 104
of the Election
Petition is by the petitioner. I have gone
through the
affidavit on page 104 of the Election
Petition.
5) I do not recollect whether the Returning
Officer is
required to get the request form on page 114
filled in by
the candidates.
Adjourned for further examination-in-chief
on 8th
October 2010 at 4.30 pm.
28th September
2010 JUDGE
This
witness was giving all evasive answers (above) hence
an Application was moved
befor the
High Court by Petitioner ( Chhugani) to cross examine
own witness.
Application
was decided in Petitioner's favour And was allowed to
cross examine
own
witness - Read below.
CROSS EXAMINATION OF THE WITNESS NO.2 OF
THE PETITIONER BY
THE PETITIONER APPEARING IN PERSON
6 It is true that I have a good knowledge of
election
laws. Even today I am unable to tell the
time at which the
scrutiny started. I do not remember whether
order of
rejection of nomination paper is supplied
free of cost.
7 I have received witness summons calling
upon me to
remain present in the Court on a particular
date. But I
was not called upon to produce any document.
8 [Witness is shown three documents tendered
by the
petitioner appearing in person. The
documents are marked
2 evi-ep1.sxw
as A-1 (collectively) for identification].
After reading
the documents I say that the scrutiny
started at 11.00 a.m.
I do not remember at what time the
nomination form of
Gajanan Kirtikar was taken up for scrutiny.
It is not
necessary that nomination forms of
candidates belongings to
recognized political parties are taken up
first for the
scrutiny. When objections are raised to
nomination form,
it is necessary to conduct a summary
enquiry.
Q. Can such summary enquiry will be over
within 2-3
minutes?
Ans : It depends on the Returning Officer.
Q. If some information is not
provided in the nomination
form, can it be extracted from the
affidavits ?
Ans: It is a subjective question which I
cannot answer.
Q. Have you taken any information
from the affidavits
while passing order dated 11th April 2009
which is on page
85 of the election petition ?
Ans:I have taken into consideration the
totality of the
information disclosed in the form.
Q. Do you agree that it is the duty
of the returning
officer to read the affidavits at
the time of scrutiny of
3 evi-ep1.sxw
nomination form ?
Ans:The duties of the Returning Officer have
been
incorporated in the handbook for the
Returning Officers.
9 It is true that before passing the
order dated 11th
April 2009 I have gone through the
affidavits of the
candidates.
(attention of the witness invited to page B
of the document
which is marked as A-1)
Q. Have you issued a copy of the decision
free of cost ?
Ans: I cannot tell. The copy has been issued
by the
Assistant Returning Officer.
Attention of the witness is invited
documents at page 99
and 104 of the Election Petition.
Q. Can you tell the Court after
reading the documents from
which constituency the petitioner
intended to contest the
election ?
Ans:The document at page 99 and 104
of the petition record
the name of the constituency as
Mumbai North Central
Constituency.
4 evi-ep1.sxw
Q. Whether you were empowered to accept
nomination form of
a candidates who were desirous of contesting
elections from
a constituency other than Mumbai North West
Constituency ?
Ans:I was empowered to accept nomination
form of each and
every candidates even from the other
constituencies.
10 Q. If any objection is raised to the
nomination
form,the Returning Officer on his own is
duty bound to give
time to the candidates to remove the
objections?
Ans: No.
I do not remember whether I have
given time to any
candidates to remove the objections.
Q. Did you give time to Mr.Ramdular
Jha to meet objections
in the nomination form ?
Ans:: I do not recollect.
(attention of the witness is invited to page
A of document
forming part of the documents tendered by
the petitioner
and marked A-1).
I did not grant time to Mr.Jha. I do not
recollect whether
5 evi-ep1.sxw
the nomination form of Mr.Jha was rejected
on 11th April
2009 or 13th April 2009. I do not recollect
whether I had
granted time to Mr.Kirtikar to meet the
objections.
Cross Examination by the learned counsel
appearing for
original second respondent :
11 I was posted as Additional Collector with
effect from
1st January 2009 and that how I was
appointed as the
Returning Officer of Mumbai North West
Parliamentary
Constituency. The election commission has
notified the
Additional Collector of Bombay Suburban
District as the
Returning Officer. The Additional Collectors
in Mumbai were
nominated as Returning Officers of different
parliamentary
constituencies. The scrutiny of nomination
papers of
Mumbai North West Parliamentary Constituency
was made in my
office on 9th floor of BSB bldg. The
scrutiny of the
nomination forms of Mumbai North Central
Constituency was
held in the office of Mr.Warbhuvan on 4th or
5th floor of the
same building. As per guidelines, scrutiny
of nomination
papers of both the constituencies proceeded
simultaneously.
It is true that I have not seen the
nomination papers of
the candidates which were submitted to
Mr.Warbhuvan. It is
true that I had seen only those nomination
forms which were
submitted to me. It is true that I was not
concerned in any
manner with the election process of Mumbai
North Central
Constituency.
6 evi-ep1.sxw
(attention of the witness is invited to the
page B forming
part of the document marked as A-1.)
After having read the document I say that
this document
pertains to the nomination paper of Mr.Ram
Dular Jha.
. No re-examination.
7th January 2011
JUDGE
Letter
to Chief Justice of India for transparency and
Justice
Recusal
by 2 judges
Full
Election Petition
Witness
Returning Officer Mahendra Warbhuvan
Witness
Returning Officer Dr Ashwini Joshi
Affidavit
filed on 22-07-2011