IN THE HIGH COURT OF JUDICATURE AT
BOMBAY O.O.C.J. ELECTION PETITON NO. 1 OF 2009 CORAM : A.S.OKA,J. DATE : 23RD MARCH 2011 Name : Shri Mahendra B. Warbhuvan. Age : 46 years. Occu. : Additional
Collector Residential Address : 11/B-4, Government Colony,
Tardeo, Hazi Ali, Mumbai 400 034. EXAMINATION IN CHIEF OF THE WITNESS NO.2 OF THE
PETITIONER BY THE PETITIONER APPEARING IN PERSON I state on S.A. 1) As per the order dated 4th February 2011
passed by this Court, I am producing full nomination paper of
the petitioner, affidavit annexure-I and
affidavit-IX (C) (the learned counsel for the Respondent has no
objection if these 3 documents are admitted in evidence and
marked as exhibits. Accordingly, the documents are
marked as P-22, P-23 and P-24 respectively.)4 ep1evi 2) My present age is 46 years. I was appointed
as the Returning Officer on the second occasion.
In the elections of the Maharashtra Assembly held subsequently I
was not appointed as a Returning Officer. It is true
that on 9th April 2009 there were different Returning
Officers sitting on different floors of the same building. I was
appointed as the Returning Officer of 29th Mumbai
North Central Parlimentary Constituency. I do not
recollect that for which constituencies the other Returning
Officers in the same building were appointed. I do not recollect
whether any candidate intending to contest election from
any other constituency entered my cabin on 9th April 2009.
If any candidate intending to contest election from any
other constituency would have approached me on
that day, I would have directed him to approach the appropriate
officer. If any candidate who was not contesting the
election from the said constituency had submitted nomination form
to me, it would have been subject to scrutiny. There was
no training imparted to me after I was appointed as
Returning Officer. On 9th April 2009, I was familiar with the
handbook for the Returning Officers and the handbook for
candidates under the Representation of People Act. I
remembered all the sections of the handbook. I may not
remember the same today as period of two years have lapsed 3 I am aware that Dr.Ashwini Joshi has appeared
as a witness in this Election Petition . It is true to say any voter from Mumbai can propose any candidate contesting the election from
any parlimentary constituency. . Adjourned to 13th April 2011 at 4.50 p.m. for
recording further examination in chief. 23rd March 2011 Judge Further examination in chief of witness Mr.
Mahendra B. Warbhuwan of the Petitioner continued on solemn
affirmation. 23-4-2011 4. I am producing request form dated 9th April,
2009 signed by the petitioner. (The said document is
marked as Exhibit P-25). I am producing list of contesting
candidates in form 7-A dated 13th April, 2009. It bears my
signature. (The document is marked as Exh. P-26). I am producing
the list of nominated candidates signed on 9th April,2009.
(The document is marked as Exh. P-27). I am producing letter
dated 11th April, 2009, submitted by the petitioner. (The letter
is marked as Exh. P-28 colly). I am producing letter dated
l3.4.2009, submitted by the petitioner. (The letter is
marked as Exhibit P-29.). I am producing two Compact Discs
in terms of the order of this Court (The Compact Discs
are collectively marked as Article ‘X’. The
Prothonotary and Senior Master is directed to keep Compact Discs in safe custody). Adjourned to 29.04.2011 at 3.00 p.m. (A.S. OKA, J) EXAMINATION-IN-CHIEF BY THE PETITIONER OF WITNESS SHRI MAHENDRA B. WARBHUVAN CONTED. 29-4-2011 5. Before submitting the compact discs to this
Court, I have viewed the same in my office. It is not
correct to say that the election commission had sought
explanation from me regarding the rejection of nomination
form of the petitioner. It is not correct to say that in the subsequent elections, persons junior to me were
appointed as Returning Officers. ( Now the witness says
that it is true that the persons junior to him were
appointed as Returning Officers in the subsequent
election.) 6. I am aware about the different types of
political parties. In case of nomination form filled in by
a candidate of a registered National Political
party, only one proposer is required. In case of State
registered political party and independent candidates, 10
proposers are required. I was possessing a list of
registered political parties. The election commission had
provided list of political parties along with covering
letter dated 24th March, 2009. I have a copy of the said list
with me. In the list of unregistered political parties,
the name of Humanist Party of India appears at Sr. No.940.
The registered addressed of the said Humanist Party
of India is of Santacruz West, Mumbai. One Jayesh Jaswantrai
Bhayani contested the same election as a candidate of
Humanist Party of India. The said candidate filed
nomination form on 9th April, 2009. On 9th April, 2009,
a list of candidates who filed nomination papers
was sent to Election Commission of India. The name
of the aforesaid candidate appears in the aforesaid list at Sr.No.9. The
name of the petitioner appeared at Sr.No.16 in the
said list forwarded to the Election Commission of India. 7. Attention of the witness is invited
to page 4 of document marked as Exhibit _ 22
(Original nomination paper). The proposers mentioned therein
belong to 177 Vandre Vidhan Sabha Constituency which
is a part of 29 Mumbai North Central Parliamentary
Constituency. The said 10 proposers could have proposed
candidates only for 29 Mumbai North Central Parliamentary
Constituency. Q. When did you learn that these proposers can propose the candidates of only 29 Mumbai North
Central Parliamentary Constituency ? Answer - I knew it. ( Witness Volunteers that in the
deposition recorded on 23rd March, 2011 he had made an incorrect
statement on this aspect.) Q. Is it correct that after I entered your cabin
for the purposes of filing nomination form, you
directed me to the assistant returning officer ? Ans - I do not remember. 8. I do not recollect what transpired after the nomination form was given by the Petitioner to
the Assistant Returning Officer. The Asstt.
Returning Officer checks the nomination forms. The Asstt.
Returning Officer checks whether all annexures are filed with the
nomination form. I do not recollect what was done by the
Asstt. Returning Officer as regards part III-A which
was blank. Q. Did my name appear in 177 Vandre West
Assembly Constituency ? Answer - I was not supposed to verify this
aspect at the time of accepting the nomination form. 9. I was aware at the relevant time about clause
no. 15.2 of the Handbook of the Returning Officers.
When a candidate enrolled in another constituency is
contesting the election from a constituency, at the time of
scrutiny, he is required to produce the voters_ list of
the said constituency. Along with nomination
form, a candidate is required to file two affidavits.
Along with the nomination form, a candidate is required to file a request
form. The requirement of filing a request form is not
mentioned in the Handbook of the Returning Officers. Request
form is not a part of the nomination form. Two
affidavits are part of the nomination form.
[The attention of the witness is invited to the nomination form ( Exhibit _
P-22 and affidavits at P-18 and Exh. P-19 and request
form at P-10]. I say that the said documents show
that the petitioner was the election from 29-Mumbai North Central Parliamentary Constituency. After reading the nomination form at Exhibit -22, I say that the Petitioner was a voter nomination form records that 177 Vandre West Assembly Constituency is a part of Mumbai North Central
Parliamentary Constituency. 10. (Attention of the witness is invited to
Exhibit -P-2 which is a receipt for nomination form ). The
said receipt has been handed over by me to
the Petitioner. The receipt refers to the constituency in
respect of which nomination paper is filed. I
was aware of clause 9.4 of Handbook of Returning Officers. I administered
oath of allegiance to the Petitioner. I was aware that
Mr. Sunil Dutt had won the election from the said
Constituency on more than one occassion and thereafter the
Respondent had won the election from the said Constituency. 11. I was aware on the date of scrutiny
that no action can be taken against the Returning
Officer for any wrong committed by him. On 11th
April, 2009 scrutiny started at 11.00 a.m. The scrutiny was carried out on the nomination papers in the order in which the
nomination papers were received. The serial number Of the
nomination form of the Respondent was 7. The
objections raised to the nomination paper of the respondent
were considered by me at the end of the scrutiny. I
do not recollect whether the Asstt. Returning officer while handing over
the nomination paper Of the petitioner stated that
the same will have to be rejected. There was
no objection taken to the nomination paper of the
Petitioner by any other candidate. I took instant decision on
the nomination form of the Petitioner.
I was aware of cl. 6 of the Handbook of the Returning Officers. Summary inquiry
was conducted as regards the nomination papers of the
petitioner. When I rejected nomination form of the petitioner,
two affidavits were filed on record. The request form was
also before me at that time. I was aware about cl. No.10.1 Of
the Handbook of the Returning Officers. ( Adjourned for few minutes. Continued after
5.00 p.m. With the consent of the parties). 12. I do not remember whether the petitioner approached me for supply of a copy of the order
of rejection of the nomination form. I am not aware
at what time application was made by the Petitioner for
supply of copy, but the application was made on 11th
April, 2009. It was not necessary for the Petitioner to make
an application for supply of a copy of rejection of
the nomination form. A copy of the order was
supplied to the Petitioner on 13th April, 2009. The Petitioner
was required to pay a sum of Rs.52/- as copying charges. ( At this stage, the learned counsel appearing for the Respondent pointed out that the
Petitioner appearing in person is recording the proceedings
of the Court on his cell phone. The Petitioner
appearing in person states that he has not recorded the
proceedings of this Court on his cell phone). 13. On the morning of 13th April, I did not
receive any sms on my cell phone from the cell phone of the
Petitioner. Last 3 lines of cl. 9.6 of the Hand book of the
Returning Officers are important. I did not commit any
mistake while dealing with the nomination form of the
Petitioner. CROSS EXAMINATION BY SHRI L.M.ACHARYA,
LD. COUNSEL APPEARING FOR THE RESPONDENT. 14. It is true that through-out the proceedings
of the scrutiny, the election observers were present.
It is true that many forms were rejected in the scrutiny. I
will be in a position to produce the orders of rejection
on the next date. On the next date, I will be in a
position to produce the nomination forms of the candidates
whose nomination papers were rejected. Adjourned for cross examination at 3.30 p.m. On
7th June, 2011. ( A.S. OKA, J ) CROSS EXAMINATION BY SHRI L.M.ACHARYA, LEARNED
COUNSEL APPEARING FOR THE RESPONDENT CONTINUED :7th
June 2011 15 I am producing four files containing
nomination forms and orders of rejection passed thereon in case of
following candidates. 1 Jayashri D. Kamble 2 Ravind Malvade 3 Banet
Rebello 4 Omprakash J. Tiwari The files are marked as P-30,P-31,P-32 and P-33
respectively. 16 (The witness is shown the document
marked as Exh.P-22) It is not true to say that what is
required to be scrutinised is first 10 pages of the nomination
form. It is
not correct to say that the affidavits and other
documents produced along with the nomination papers are not subject
matter of scrutiny. Q Are you in position to support the aforesaid
statement by any provisions of law ? Ans I am relying
upon section 36 of Representation of People Act. According to me rule 4 and 4A of
Conduct of Election Rules, 1961 require scrutiny of the affidavits to
be made. 17 It is not correct to say that the affidavits
filed along with nomination form are not the integral part
of the nomination form and that the same are not
subject to scrutiny. When the nomination form of the
petitioner was rejected, the ground on which the form was rejected
was informed to the petitioner. It is not correct to say
that when nomination form of the petitioner was rejected no
grievance was made by him. The
petitioner orally objected to it. The ground of rejection of the petitioner_ s nomination form was brought
to the notice of the election observers. No other candidate
except petitioner whose nomination form was rejected has initiated
any proceedings for challenging the rejection of
nomination. No re-examination 7th June
2011 JUDGE
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