IN
THE HIGH COURT OF JUDICATURE AT BOMBAY
OOCJ- DISTRICT: MUMBAI
APPLICATION NO. 6 OF 2011
In
ELECTION PETITION No: EP / 1 OF 2009
(filed on 22nd July 2011)
Indur Kartar Chhugani … Applicant
(Original Petitioner)
Vs
Ms Priya Sunil Dutt ... Respondent
Affidavit in Application
(Counter Affidavit after Reply from Respondent)
I, Indur K Chhugani the Applicant and Original
Petitioner do hereby solemnly affirm and state as
under:
After having read the Affidavit-in-Reply of the
Respondent, I have discovered that the Respondent
is taking advantage of the fact that this
Hon’ble Court has taken over the trial of
this Election Petition very recently and not
conversant with the facts and so has completely
distorted all facts, to mislead this Hon’ble
Court on various issues. The true facts are as
under, which can be checked from the Court
records too:
(A)
Delay in trial is mainly on account of
Respondent’s (Priya Dutt ) actions :
1. Election Petition was filed on 5-6-2009.The
Respondent in 2009 first refused to accept the
summons when this Petitioner went with the
officer of the Sheriff of Mumbai to her residence
and office and then Respondent refused to accept
the Summons / copy of petition sent thru
Registered post. Respondent’s legal team
came to court after reports appeared in the media
about her refusal to accept summons. Respondent
filed her statement only on 27-11-2009. Thus were
lost 5 months plus.
2. Respondent resorted to delaying tactics at
every stage, from ‘Inspection of original
documents’, to filing ‘Issues to be
framed’. Thus ‘Issues were framed’
only on 11-2-2010.
3. The Presiding Judge was transferred to Goa
bench so the date given after 22-4-2010 was
24-8-2010 . Thus 4 months were lost
4. Thereafter on 24-8-2010 to delay matters
further, Respondent desired to file objections on
very flimsy grounds against witness No 3 and 6 as
the two were present in court when Petitioner
replied 1st few question while being cross
examined. Objections were filed on 4-9-2010 by
Respondent. After arguments the Court overruled
the Respondents objections on 14th January 2011.
Respondent also played a dirty trick by
submitting Judgements of 1938 which were already
overturned by superior courts (Order copy
attached as ANNEXURE ‘A’) But almost 10
weeks were lost in filing and fixing date for
arguments, etc.
5. Frustrated by the delay, on 13-9-2010, I the
petitioner filed Application 25 of 2010 for
calling of Video Record from Election Commission
of Nomination Process and Scrutiny Process and
explained how the trial can be completed in 7
days and dependence on witnesses greatly reduced.
But no order was passed till 5 months later.
6. On 16th September 2011, Dr Ashwini Joshi
former Returning Officer of ‘Mumbai North
West Constituency’ appeared as
Petitioner’s witness and she gave all
evasive answers and Petitioner was forced to file
Application under Section 154 of the Indian
Evidence Act, 1872, to put questions to witness
as under a cross examination. On 14th October
2010 Court ruled in favour of Petitioner. However
the witness then delayed the trial by remaining
absent repeatedly. Only on 7th January 2011 her
testimony was completed. Thus this witness took
away another 4 months.
7. After Mr Mahendra Warbhuvan former Returning
Officer of ‘Mumbai North Central
Constituency’ appeared as Petitioners
witness, the Application no 25 of 2010 dt 13th
September 2010 for production of Video Recording
was heard and order passed, asking Returning
Officer to handover the Video Recordings to the
court on 4-2-2011. The Respondent did not want
the Video Recordings to be viewed by the Court
and asked for time to Appeal to the Supreme Court
of India. Time was granted to Respondent.
8. The Supreme Court dismissed the plea of the
Respondent that the “Video Recording of the
Nomination and Scrutiny Process” must not be
made available to the High court and
dismissed her Special Leave Application No 8143
of 2011 on 4-4-2011 and so the Returning Officer
submitted the Video recordings in 2 Compact
Disc’s to the Court on 13- 4-2011. Thus
again were lost 10 weeks.
(B)
Video Recordings reach High Court and subsequent
events:
1. On 13th April 2011, the Returning
Officer who under instructions from Election
Commission of India had got the process of
“Nomination and Scrutiny of Nomination
form” Video Recorded himself submitted the
Recordings to the Court in 2 Compact Discs. The
Hon’ble Judge just got them collectively
marked as ‘Article X’ and directed the
Prothonotary and Senior master to keep compact
Discs in safe custody. ( The correct procedure
was not adopted, of getting certificate from
Returning Officer under section 65(B) of The
Indian Evidence Act and treating it as an EXHIBIT
of an Electronic Record. These Compact
Disc’s had come to Court directly from the
Election Commission Of India, which is a
Constitutional Authority through the Returning
Officer, the same individual who had rejected my
Nomination form).
2. The Returning Officer Mr Mahendra
Warbhuvan continued to depose as
Petitioner’s witness on 29th April 2011 and
7th June 2011 on which date his cross examination
was completed.
3. On 7th June 2011 after deposition of
the Returning Officer ended ( he was my 5th
witness – whereas in the list of witness I
had submitted there were 7 witnesses)
Hon’ble Justice Shri Abhay Oka asked me, If
I was still wanting to examine the balance 2
witnesses, to which I replied “Returning
Officer has given wonderful testimony and
examining further witness will only needlessly
delay the petition”. The Judge has recorded
it as “The Petitioner appearing in person
has closed his evidence”. Next date was
given as 10-7-2011.
4. On 10th June 2011, Respondent
appeared personally in the court, and Counsel for
Respondent mentioned words to the effect
“Respondent does not wish to lead any
evidence”. And the Hon’ble Judge
suggested / asked me, if I would like to make
written submissions, to which I replied YES and I
immediately reminded the Hon’ble Judge, of
Court not yet having viewed the Compact
Disc’s, to which the Judge explained,
“it can be viewed after it is admitted in
evidence, in any case Returning Officer has given
all details in his deposition”. I did not
put any further query.
5.23rd
June 2011- After written submissions were
exchanged with the Respondent and filed in court
on 20th June 2011, I appeared for Arguments on
23rd June 2011. However even before I opened my
mouth, I was confronted by the Hon’ble
Judge Shri Abhay Oka and asked to reply
FIRST to some Judgement Annexed by the Respondent
as according to the judge a certain Para of the
judgement was going against my case, I patiently
explained to the Judge, that particular Judgement
I had seen even before I had filed my petition in
2009 and it would be of no consequence, after I
explained the various Judgements I had annexed. However
the judge kept on hurling a barrage of questions
at me.
To deflect the pressure on me, I started
explaining from ‘Handbook for Returning
Officers’ on pg 19-58 of Petition, different
Clauses of which, the Returning Officer had
deliberately contravened. At the end, the
Hon’ble Judge shocked me by saying “In
an Election Petition Handbook for Returning
Officers cannot be considered”.
I then jumped to the testimony of the 2 Returning
Officers, which was good enough to prove, that my
‘Nomination Form was rejected
improperly’. However the Hon’ble judge
shocked me again, by saying “Oral testimony
of Returning Officers will not be taken into
consideration and cannot help you, as these
people do not know the law, which is for this
Court to interpret”. It prompted me to ask
“Then why did court waste it’s own time
and mine in recording their testimony and how is
it, that people who do not know the law are made
Returning Officers during the Parliamentary
Elections”.
Now desperate, I
tried to invite the attention of the Judge to the
Supreme Court Judgement (‘Annexure
‘A’ in my submission), of RAKESH KUMAR
versus SUNIL KUMAR - Civil Appeal No 8695 of
1997, decided on February 9, 1999, which again
proved that my Nomination Form was rejected
IMPROPERLY as that case was almost identical to
my case. But the Judge refused to let me read,
stating that the Judgement submitted by the
Respondent was of a larger bench so that will
prevail. Fortunately at this stage, the case was
adjourned to 24th June 2011.
I reached home
dejected, unable to comprehend, how the Judge
could suddenly take a U turn on all issues and
started to check the No of Supreme Court Judges
of the 7 Judgements I had annexed, and was
shocked to see that not all were of smaller bench
and the Judgement RAKESH KUMAR Versus SUNIL KUMAR
(1999) definitely prevailed over Prahladdas
Khandelwal Vs Narendra Kumar (1972)- Submitted by
Respondent- As both were of 3 Judges bench. I
felt sick and could not sleep all night.
6. 24th
June 2011 – After consulting a Doctor on phone,
I sent a SMS message to a Court Official and
Advocate Acharya of Respondent on 9820035065
stating “I have severe pain in the shoulders
and general feeling of uneasiness and will not be
able to come to court today. Hence please inform
the Judge in the morning itself”. Mr Acharya
called me back within 5 minutes, on my number
9820171571 and pleaded with me to try coming to
court as the Judge was in a mood to pass fast
order, when I pleaded helplessness he said “If
you cannot come, send your wife, we will argue in
her presence and argue only what we have given
you in writing, nothing more”
Now this was shocking and made me feel more sick.
( Please note- I will be getting the voice
recording of my mobile phone for 24-7-2011 from
my service provider VodaFone).
7. 1st
July 2011 -
When this petitioner appeared before Justice Shri
Abhay Oka, all the above was told to the
Hon’ble judge in as mild words as possible
and explained that it was just possible, that
because the Respondents had underlined important
para’s in Judgements submitted (not the
practice in High Court) it had caught the judges
attention, whereas the Petitioner had submitted
all 7 judgements without any underlining and the
same maybe allowed to the Petitioner also. Judge
A Oka recused himself.
(C)
Why Video Record must be viewed by Court:
1. This Hon’ble Court is required examine
all evidence that is relevant and helps it to
arrive at the truth. And Video Record is the most
important and relevant evidence.
2. This is the recording of
the “Quasi Judicial proceedings” in
presence of the Returning Officer arranged by the
Returning Officer on orders of the Election
Commission of India.
3. Now “unless a
document is exhibited at the trial and is put in
evidence it cannot be looked into”. AND the
Supreme Court by dismissing the SLP of the
Respondent has clearly directed, that the video
recordings must be looked into.
4. This Video Record is
come from the most authentic source that is the
Election Commission of India and there is
absolutely no reason to doubt its authenticity.
5. This Video record is a
Public Document and was recorded in the course of
conduct of Parliamentary Elections.
6. Sir, I humbly submit
that besides being a public document, the
contents of CDs were not specifically denied by
the respondent and, therefore, no further
evidence is required to be produced to prove the
authenticity of the CDs.
7. The Respondent herself,
went to file Nomination Form and is well aware of
the Video Recording done during ‘Nomination
and Scrutiny process’.
It may kindly be observed
by this Hon’ble Court that nowhere has
Hon’ble Justice Shri Abhay Oka in last 2
orders of 24th June 2011 or 1st July 2011, used
the words “Final Arguments” or
“Final Submissions” clearly the
Hon’ble Judge was aware that the Video
Records may be required to be added in evidence.
Considering all that is
detailed in above para and in (A), (B) and (C),
all prayers in Application 6 of 2011 filed on
30th June 2011, may kindly be allowed by this
Hon’ble Court in the interest of Justice.
This 22nd day of July 2011 (Indur Kartar
Chhugani)
Applicant
VERIFICATION
I, Indur Kartar Chhugani, son of Late Mr. Kartar
Chhugani, Aged 63 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 22nd day of July 2011 (Indur Kartar
Chhugani) Applicant