Case Note & Summary
The matter involved two Letters Patent Appeals before a Division Bench of the Bombay High Court arising from a common judgment of a Single Judge dated 19th and 20th March 2009. The Single Judge had allowed writ petitions filed by the elected corporator and Pune Municipal Corporation, thereby quashing the order of the Small Causes Court, Pune. The Small Causes Court had earlier allowed the election petition of the appellant, declaring the election of the respondent corporator from Ward No.42 void and ordering a fresh election. The dispute centered on the rejection of the appellant's nomination paper for the municipal election of February 2007. The appellant, a BJP candidate, submitted his nomination form for Ward No.42. During scrutiny on 16 January 2007, the Returning Officer found that a certificate submitted by the appellant to prove his name in the electoral roll of Ward No.45 was unsigned. The appellant requested time to produce a valid certificate, but failed to do so by the end of the day. Consequently, the Returning Officer rejected his nomination. Aggrieved, the appellant filed Election Petition No.1 of 2007 before the Small Causes Court, which set aside the election. The elected corporator and the Municipal Corporation then filed separate writ petitions before the High Court. The Single Judge allowed those petitions, holding that the rejection of the nomination was proper. Before the Division Bench, the appellant argued that under the Bombay Provincial Municipal Corporation Act, 1949 and the Election Rules in Schedule D Chapter I, a candidate is not required to furnish such a certificate with the nomination form, and thus the unsigned certificate was an irrelevant document and its deficiency was a minor defect that should not have led to rejection. Reliance was placed on Rule 9(9), Rule 9(10) and Rule 10 of the Election Rules, as well as on several Supreme Court decisions on substantial defect and adverse inference. The respondents contended that the Returning Officer had acted within his powers, granted an opportunity to remove the defect, and the appellant's failure to produce a signed certificate justified rejection. The judgment text provided ends during submissions on behalf of the respondents, and does not contain the final operative order of the Division Bench.
Issue of Consideration
Whether the rejection of the nomination paper by the Election Returning Officer for failure to produce a signed voter certificate constituted a substantial defect warranting rejection under the Bombay Provincial Municipal Corporation Act, 1949 and its Election Rules, and whether the Single Judge correctly interfered with the Small Causes Court's order.
Law Points
- Rejection of nomination paper
- substantial defect
- minor defect
- Returning Officer's scrutiny powers
- Rule 9(9) Bombay Provincial Municipal Corporation Act Election Rules
- Rule 9(10)
- Rule 10
- adverse inference
- non-examination of witness
- production of unsigned certificate
- reliance on incorrect Act
Case Details
2011 LawText (BOM) (08) 91
Letters Patent Appeal No.115 of 2009 and Letters Patent Appeal No.116 of 2009
P.B. Majmudar, Mridula Bhatkar
S.S. Kanetkar, A.B. Tajane, S.G. Aney, R.V. Govilkar, Ujwala Sawant, A.P. Kulkarni
Shri Shailesh Narayan Shinde
Chetan Vitthal Tupe, Pune Municipal Corporation, Election Returning Officer No.6 & Ors.
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Nature of Litigation
Letters Patent Appeal arising from an election dispute under the Bombay Provincial Municipal Corporation Act, 1949 concerning rejection of a nomination paper for Ward No.42 of Pune Municipal Corporation elections.
Remedy Sought
Appellant sought to set aside the Single Judge's order and restore the Small Causes Court's order declaring the election void and ordering a fresh election.
Filing Reason
Appellant's nomination paper was rejected by the Election Returning Officer due to an unsigned voter certificate; he challenged the rejection and the election of the rival candidate.
Previous Decisions
Small Causes Court allowed Election Petition No.1 of 2007, declared election of respondent No.1 void and ordered fresh election. Single Judge of High Court allowed writ petitions of respondent No.1 and PMC, quashed Small Causes Court order and upheld rejection of nomination.
Issues
Whether the rejection of the nomination paper by the Returning Officer on the ground of an unsigned voter certificate was justified under the BPMC Act and Election Rules?
Whether the defect of lacking a signed certificate was a substantial defect or a minor one, and could it be a ground for rejection under Rule 10?
Whether the Single Judge erred in relying on the Mumbai Municipal Corporation Act, 1888 instead of the BPMC Act?
Whether the Returning Officer's insistence on a signed certificate and rejection of nomination was proper given that the appellant produced the electoral roll?
Whether an adverse inference should be drawn against the Returning Officer for not entering the witness box?
Submissions/Arguments
Appellant argued that the nomination form did not require production of a voter certificate; the unsigned certificate was irrelevant and its deficiency was a minor defect, not of substantial nature, and could not be the basis for rejection. The Returning Officer should have verified the appellant's name from the voters list of Ward No.45. Non-examination of the Returning Officer warranted an adverse inference.
Respondents argued that the Returning Officer had authority to scrutinize nominations and took objection; the appellant was given time to produce a signed certificate but failed. The rejection was therefore proper and the defect was substantial.
Procedural History
Appellant submitted nomination on 15-01-2007 for Ward No.42. During scrutiny on 16-01-2007, Returning Officer found unsigned voter certificate. Appellant sought time but could not produce signed certificate; nomination rejected. Appellant filed Election Petition No.1 of 2007 before Small Causes Court, Pune, which allowed the petition, declared election of respondent No.1 void and ordered fresh election. Respondent No.1 and Pune Municipal Corporation filed writ petitions before High Court. Single Judge allowed writ petitions on 19-03-2009 and 20-03-2009, quashing Small Causes Court order. Appellant filed Letters Patent Appeals.
Acts & Sections
- Bombay Provincial Municipal Corporation Act, 1949: Election Rules (Schedule D, Chapter I), Rule 9(9), Rule 9(10), Rule 10
