IN THE HIGH COURT OF
JUDICATURE AT BOMBAY
ORDINARY
ORIGINAL CIVIL JURISDICTION DISTRICT: MUMBAI
ELECTION PETITION No: EP
/ 1
OF 2009 ELECTION PETITION UNDER REPRESENTATION OF THE
PEOPLE ACT 1951 And IN THE MATTER OF ARTICLES 14, 19 & 21 OF THE
CONSTITUTION OF INDIA And GUIDELINES PROVIDED BY THE ELECTION COMMISSION
IN HANDBOOK FOR RETURNING OFFICERS And HANDBOOK FOR CANDIDATES. Petition to declare the result of election
from Mumbai North Central Constituency to the Lok Sabha
to be void, under Representation of the People Act 1951, Section
100 (C) Indur Kartar Chhugani
… Petitioner
Age : 61 years, Occ. : Social work,
R/o. : 501-502, Pinky Panorama CHS Ltd.
6th Road, Khar (W), Mumbai - 400 052. V E R S U S
1. Mr Mahendra Warbhuvan. Returning Officer, 29th Mumbai North Central
Constituency, Election Commission Of India, Upper Distric Collector and competent authority 5th floor, Brihanmumbai Adminstrative
Building, Near Chetna College, Bandra E, Mumbai 400 051. 2. Chief Election Commissioner of India, ELECTION COMMISSION OF
INDIA, Nirvachan Sadan, Ashoka Road, New Delhi – 110 001. 3. Ms Priya Sunil Dutt A-1002, 44, Imperial Heights,
Zigzag Road, Vandre West, Mumbai 400 050 ...
Respondents
To,
Honourable
the Chief Justice and
other Puisne Judges of
this Hon’ble High Court of Judicature at
Bombay. Most Respectfully Showeth: I, the Petitioner, Indur Kartar Chhugani, son of
Late Mr.Kartar Chhugani, aged 61 years, resident of
501/502 Pinky Panorama Co-operative Society, 6th Road,
Khar (West) Mumbai- 400 052, falling in the Mumbai North
Central Parliamentary constituency, do hereby state on
oath and solemn affirmation as under:- That I am the managing trustee of a Trust named
“People for Legal and Emotional Assistance to the
Deserving” (PLEAD), Regd. No. E-24397 (BOM). The
objective of PLEAD is to bring together all retired and
highly educated persons such as Engineers, Doctors,
Lawyers, Military personnel, Teachers, Journalists,
Judges, Police officers and other literate citizens to
unite under one forum and form citizen groups in each
police station area to bring about changes in all matters
of importance to the public and the nation through legal
and democratic means. A. That I had filed my Nomination Paper
for Mumbai North Central Parliamentary Constituency on
9.4.2009 and my Nomination Paper was illegally rejected
on 11.4.2009 during scrutiny on the ground that I had not
mentioned “29 Mumbai North Central” in the
first column in Part II of Nomination Paper, inspite of
there being overwhelming evidence that I was contesting
from Mumbai North Central Constituency. However in
the “Election Request Form” which the Returning
Officer handed over to me to fill, while presenting
the nomination paper, the first Column was “No and
Name of the Parliamentary Constituency”, against
which the words “29-Mumbai North Central
Parliamentary Constituency” were already printed - see
EXHIBIT “H” . My Nomination paper was
rejected by the returning Officer by ignoring clear
guidelines provided by the Election Commission to the
Returning Officers, cautioning them not to reject
Nomination Paper on flimsy grounds of minor technical or
clerical errors, as under: a. PRESUMPTION OF VALIDITY ( from Page
65 ) Para 7. There is a presumption that every
nomination paper is valid unless the contrary is prima
facie obvious or has been made out. In case of a
reasonable doubt as to the validity of a nomination
paper, the benefit of such doubt must go to the candidate
concerned and the nomination paper should be held to be
valid. Remember that whenever a candidate’s
nomination paper is improperly rejected and he is
prevented thereby from contesting the election, there is
a legal presumption that the result of the election has
been materially affected by such improper rejection and
the election will, therefore, be set aside. There is no
such legal presumption necessarily in the converse case
where a candidate’s nomination has been improperly
accepted. It is always safer, therefore, to adopt a
comparatively liberal approach in dealing with minor
technical or clerical errors. (Photocopy of Chapter V and
VI from Handbook For Returning Officer is Attached as EXHIBIT
“A”). In HANDBOOK FOR RETURNING OFFICERS under CHAPTER
VI Para 10.1 on page 67 prepared by the Election
Commission, under “Grounds for rejection of
Nomination Paper” an exhaustive list of
conditions is given, which would be valid ground for
rejection. However having inadvertently left a line blank
about the name of the constituency is not mentioned as
“Grounds for Rejection” More important instructions and guidelines are
given as point 9.4 on page 66 clearly cautioning the
Returning Officers against rejecting Nomination papers on
flimsy grounds. Yet the Returning Officer decided to
ignore all guidelines. aa ..Point 9.4 In the past, there were instances where
nomination papers were rejected on flimsy grounds, e.g.
for mistakes made in the nomination paper regarding; (a)
the year of election, or (b) the exact name of the House
of the Legislature or the constituency, (c) the
description of an electoral roll number, or (d) the
choice of symbols, or (e) some discrepancy between the
age, name, or other particulars of the candidate or his
proposer as given in the nomination paper and in the
electoral roll and so on. Such unjustifiable and improper
orders of rejection on technical grounds had led to a
large number of election petitions and the eventual
setting aside of several elections with consequent
avoidable waste of time, money and labour for all
concerned. Similar instances of improper rejections
should not occur again and it is upto you to interpret
the provisions of the law intelligently and with
commonsense. Do not, therefore, reject any nomination
paper for such technical or clerical errors or
discrepancies. Most of them can and should be directed by
you to be set right at the time of the presentation of
the nomination paper [section 33 (4) proviso]. It would,
therefore, be very undesirable if you fail at the proper
stage to help a candidate by exercising your powers and
discretion under the proviso to section 33(4) and later
at the time of scrutiny you reject his nomination paper
on the ground of those very defects which could have been
set right under that section. B. That the Returning Officer
hurriedly wrote the rejection order making numerous
mistakes initially and corrected them. After the
rejection order was passed hurriedly, without allowing
time, to provide clarification, as envisaged under R.P.
Act 36 (5), the Returning Officer deliberately delayed
giving the certified copy of the rejection order for 2
days, making it impossible to approach the Chief Election
Commissioner or the High Court for prompt redressal to
avoid this Election Petition. Attached is Photocopy of
rejection order as EXHIBIT “B” b. From Handbook for Returning Officers, page
68… 10.2 You should invariably record the
reasons for rejecting a nomination paper on the spot, and
supply certified copies of the order immediately in cases
where all the nomination papers filed by a candidate have
been rejected by you. This may be done even in the
absence of an application from him and without payment. C. In The “Handbook for
Candidates” CHAPTER IV in Para 10 on page 39
prepared by the Election Commission, under “Grounds
for rejection of Nomination Paper” an exhaustive
list of conditions is given, which would be valid ground
for rejection. However having inadvertently left a line
blank about the name of the constituency is not mentioned
as “Grounds for Rejection”. Further in Para 11,
it is clearly mentioned “According to the
Commissions instructions, you are entitled to get a copy
immediately after the returning Officer has passed an
order rejecting your nomination paper for which you need
not pay any fee or charges”. But the Returning
Officer flouted all laws and guidelines, the order copy
was given after two days of constant follow up and only
after payment of Rs 52/-, when this para about Free copy
was pointed out to the returning Officer, his reply was
“Go file an election petition to recover Rs
52/-“ . (Photocopy of Chapter III and IV from
“Handbook For Candidates” by the Election
Commission of India is Attached as EXHIBIT
“C”) D. Here I would like to bring to
the notice of this Hon’ble court, that on the same
day 11.4.2009 when my Nomination Paper was rejected on
irrelevant and flimsy grounds, the nomination paper of
Candidate for Mumbai North West constituency Shri
Gajanand Kirtikar was accepted, by the Returning Officer
Dr Ashwini Joshi inspite of objections raised by many
candidates, because Shri Kirtikar had not filled and
signed Form III A and part III (d) of the Nomination
paper. The returning Officer Dr Ashwini Joshi overruled
all objections citing Para 7 reproduced above in Para “A”
of this petition. Also the Returning officer
states “In my opinion, benefit of doubt can be
given to the candidate. I have also referred para 9 of
Chapter VI of Handbook of returning Officers in which
point 9.1 states- Do not reject any nomination paper on
the ground of any defect which is not of substantial
character (section 36 (4) of R.P. Act 1951) any mistake
or error of a technical or clerical should therefore be
ignored by you” and further stated that
since the information to be provided in Form III A and
III (d) was provided by the candidate in the 2
affidavits filed, there was no valid ground for rejection
of the nomination form. Photocopy of order passed by Dr
Ashwini Joshi is Attached as EXHIBIT “D”. E. As required under R.P.
Act Section 81. This Election petition is filed within 45
days from the date of election of the returned candidate.
As per R.P. Act Section 82, the Returned Candidate Ms Priya
Sunil Dutt is joined as Respondent No 3. As per R.P.Act
Section 117 Rs 2000/- is deposited with the High Court as
security for the costs of the petition. EVENTS. 1. That I had filed the Nomination
Paper for the forthcoming elections to Parliament, with
the Returning Officer of the Election Commission
appointed specifically for Mumbai North-Central
Constituency on 9th April 2009. The Returning
officer Mr Mahendra Warbhuvan was only for this one
constituency. 2. After I entered the cabin of the
Returning Officer, the Assistant returning officer, took
the Nomination Paper from me and went through every page.
He checked, from the paper, if I was a voter from Mumbai
North Central Constituency, after satisfying himself with
that fact, with the record confirmed from the voters
list, he invited my attention to PART III A, in which, I
had marked my answer as “No” in the 1st
part, whether I was ever convicted for any offence. He
directed me to draw 2 lines across page 8 and 10 and
mention as “Not Applicable”. After I did as
told, he instructed me to hand over the Paper to the
Returning Officer along with the 2 affidavits. Photocopy
of Full Nomination Paper Attached as EXHIBIT
“E”. 3. The Returning Officer had no
doubt about me being a candidate from Mumbai North
Central Constituency, when I presented my Nomination
paper. The Returning officer confirmed, (under point 15.1
page 47), that I was an elector from the same
constituency by comparing the entries in the nomination
paper with the entries in the electrol roll relating to
serial number and my name. He did not issue memo to me as
required in point 15.2. Had I been contesting from any
other constituency, a memo was required to be issued to
me under point 15.2. 4. In the nomination Paper on page
4 are names and signatures of 10 proposers, all from
Assembly constituency 177 Vandre W. This Assembly
constituency is within Mumbai North Central Contituency
and these proposers are entitled to ONLY propose a
candidate for Mumbai North Central Constituency. And they
have proposed my name, which appears in the nomination
Paper. 5. My first Affidavit as ANNEXURE
I, starts with the words, in bold printing
“AFFIDAVIT BY CANDIDATE ALONG WITH NOMINATION PAPER
BEFORE THE RETURNING OFFICER FOR ELECTION TO PARLIAMENT
FROM MUMBAI NORTH CENTRAL CONSTITUENCY”. Photocopy
of Affidavit Attached as EXHIBIT “F-1” 6. My second Affidavit as ANNEXURE
IX C, ALSO starts with the words, in bold printing
“AFFIDAVIT BY CANDIDATE ALONG WITH NOMINATION PAPER
BEFORE THE RETURNING OFFICER FOR ELECTION TO PARLIAMENT
FROM MUMBAI NORTH CENTRAL CONSTITUENCY”. Photocopy
of Affidavit Attached as EXHIBIT “F-2” 7. I then handed over the
Nomination form plus the 2 affidavits to the Returning
Officer. The Returning Officer filled in the PART IV,
which is “Receipt for Nomination Paper and Notice Of
Scrutiny” and handed it to me, clearly filling in
his own handwriting, in the columns, which states as
under: A. Serial No 25. The nomination
paper of Indur Kartar Chhugani a candidate for election
from the 29 Mumbai North Central Parliamentary
Constituency was delivered to me at my Office at 01.52 pm
on 09.04.2009 by the candidate. All nomination papers
will be taken up for scrutiny at 11 am on 11.04.2009 at
office of R.O. 29 Mumbai North Central P.C Sd by
The Returning Officer 9.4.2009 … ( All dark printing
is in the hand writing of the Returning officer).
Photocopy Attached as EXHIBIT “G” 8. The returning officer then
handed over “Election Request Form” to me to
fill. I duly filled this form and handed over to the
Returning Officer. The first Column of this Form is
“No. and Name of the Parliamentary Parliamentary
Constituency” … Against this column the
words were already printed “29-Mumbai North Central
Parliamentary Constituency”. Photocopy Attached as EXHIBIT
“H” 9. That I was then administered an
OATH at 1.54 pm on 9.4.2009 by the Returning officer of
Mumbai North Central Constituency, in the name of God
solemnly affirming faith and allegiance to the
constitution of India. Certificate of receipt of Oath was
given to me. This certificate is signed by the Returning
officer of the Mumbai North Central Constituency.
Photocopy Attached as EXHIBIT “I” 10.
That I was then asked to handover Rs 10,000/-
(Rupees Ten Thousand only) as deposit and a receipt was
given to me signed by the Returning officer of the Mumbai
North Central Constituency. This receipt is from the
receipt book used only for candidates of Mumbai North
Central Constituency. After I paid this deposit, under R.
P. Act section 34 Deposits(1)a, I was deemed to be duly
mominated for election from Mumbai North Central
Constituency. Photocopy of Receipt attached as EXIHIBIT
“J”. 11.
Thereafter a “Check List of Documents in
Connection with filing of nomination” was prepared
by the Returning officer, the duplicate of which was
handed over to me. The first column is Name of
Constutuency : 29 Mumbai North Central P C is filled
in by the Returning officer. Photocopy of this
document is attached as EXIHIBIT “K”.
12.
Thereafter a letter as ANNEXURE-XVII F (Chapter V
PARA 30.8) was taken from me. This letter is addressed to
The Returning Officer, “Mumbai North Central
Constituency”. Which is acknowledgement of having
received register bearing serial No 17 for recording
expenses incurred during election campaign. Photocopy
attached as EXIHIBIT “L-1”. 13.
Thereafter a letter dt 9.4.2009 was given to me and
acknowledgement taken about Photographs to be provided
for issue of identity cards. This letter also confirms
that I am candidate nominated from “Mumbai North
Central Constituency”. Photocopy attached as EXIHIBIT
“L-2” 14.
Thereafter a letter dt 9.4.2009 was given to me and
acknowledgement taken Distribution of Election
Symbol to the Nominated Candidates for the election This
letter also confirms that I am candidate nominated from
“Mumbai North Central Constituency”. Photocopy
attached as EXIHIBIT “L-3” 15.
Thereafter a Receipt was taken from me. This receipt
is addressed to The Returning Officer, “Mumbai North
Central Constituency”. Which is acknowledgement of
having exchanged 16 documents on 9.4.2009, in connection
with filing Nomination paper for “Mumbai North
Central Constituency”. Photocopy attached as EXIHIBIT
“L-4”. 16.
I have obtained under Right to Information Act a CD
of the event of Nomination process, Video recorded on
9.4.2009 by the Election Commission of India and about
Scrutiny on 11.4.2009. This can be viewed by the Court. 17.
On 9.4.2009, the returning Officer has sent a
list of candidates from whom the Nomination Papers are
received for Mumbai North Central Constituency to the
Election Commission, in this list my name is mentioned at
Serial No 16 Photocopy of list attached as EXIHIBIT
“M”. 18.
That all candidates were called for scrutiny on
11.4.2009, I presented myself, before the Returning
officer at 10.30 am on 11.4.2009, though I was called at
11 am. I was seated in the first row. 19.
That when my Paper came up for Scrutiny, I heard the
Ast Returning Officer telling the Returning officer that
this candidate has left the first column blank, where it
should have been entered “Mumbai North
Central”. I immediately requested to be allowed to
enter the 3 words in the first line. No objections were
raised by any candidate or their Agents present, when I
made this request. However the Returning officer declined
to allow that and stated that we will have to reject your
Nomination form. 20.
That I pleaded with him and showed him the EXHIBITS
F,G,I,J,K and L but he refused to relent, stating I
am rejecting your nomination. The Returning Officer
refused to allow me time to bring all facts to his
attention, as provided under The Peoples Representation
Act under 36 (5). However I was told, I can make a
representation, after all the candidates forms are
scrutinised. 21.
At around 12 noon, I approached the Returning Officer
and the Asst Returning Officer with all papers, which I
was carrying with me, but the Returning Officer expressed
inability to do anything, stating “I have already
passed the order and you will have to file an election
petition to get the order amended, I cannot change the
order now”. 22.
That at approximately 12.30 pm on Saturday 11.4.2009,
I made a application, to the Returning officer,
requesting copy of order passed, rejecting my nomination
and copy of my Nomination Paper submitted to him.
Photocopy of application attached as EXHIBIT
“N”. I was asked to come after 2 hours.
Accordingly I went at 2.30 pm and was told, it was not
ready and to come at 4.30 pm. 23.
That at 2.30pm I explained the urgency of having to
approach the Bombay High Court and/or the Chief Election
Commissioner, with a certified copy of the order
rejecting my nomination and pleaded not to let me down at
4.30 pm, as I planned to travel to the Election
Commission Of India Office in Delhi, the next day. Also
I informed the Returning officer, that I will send my son
at 4.30pm. 24.
However when I sent my Son Shri Sushil Chhugani at
4.30 pm, to the Returning Officer, he was told by the
returning officer, to come at 10.30 am on Monday 13th
April 2009. 25.
On 13th April 2009, I first sent an SMS at
10:15 am to Mr Warbhuvan, on his mobile No 98694 44157
explaining the urgency of getting the certified copy of
the order, as I wished to move the High Court, I reached
their office at 11 am and was made to wait indefinitely.
At 1 pm I gave application to the returning officer,
pleading for the copy of the rejection order. Finally the
certified copy was given to me at 2.30 pm after I was
forced to pay Rs 52/- . According to Point 10.2 on page
68 of the “HANDBOOK FOR RETURNING OFFICERS”
this copy of rejection order was to be supplied to me
free and without any application. Photocopy of 2nd
application Attached as EXHIBIT “O”. 26.
The final copy of candidates for Mumbai North Central
Constituency after withdrawal was to be ready by 3pm on
13.4.2009, the same day and in 30 minutes after receiving
certified copy, it was impossible to approach High Court
or any other authority. 27.
That Still I contacted Chief Electoral Officer,
Maharastra at Mantralaya personally on 15th
April 2009, (as 14th April 2009, was a
holiday), with a letter. He was busy and unable to
meet me. I then sent a letter dt 14th April
2009, to the Chief Election Commissioner, giving details
of events at the office of the Returning officer in
Mumbai. Copy of letter attached as EXHIBIT
“P”. PRAYERS. 1. This Honourable Court may kindly
declare the election result of 29 Mumbai North North
constituency as void. 2. Any other order as this Hon’ble
Court may deem fit and necessary to avoid such a
situation in future. For which acts of kindness and justice the
Petitioner shall ever be grateful. Mumbai: /6/2009
Indur Kartar Chhugani Petitioner
AFFIRMATION I, Indur Kartar
Chhugani, son of Late Mr. Kartar Chhugani,
Aged 61 years, resident of 501/502, Pinky Panorama Co-operative
Society, 6th Road, Khar (West), Mumbai-400 052, do hereby
state on solemn affirmation that what is stated
hereinabove is true and correct to the best of my
knowledge and record and information gathered by me,
which I believe to be true. Solemnly affirmed
at Mumbai This 5th
day of June 2009
(Indur Kartar Chhugani)
Petitioner Identified by:
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