Case Note & Summary
The petitioner, Ansari Sana Masood, filed a writ petition challenging the judgment of the Small Cause Court, Mumbai, which dismissed her election petition under Section 33 of the Mumbai Municipal Corporation Act, 1888. The election in question was for Ward No. 158, Kurla Village, Mumbai, held in February 2012. The petitioner and respondent No. 1 were candidates; the respondent secured 5353 votes, the petitioner 5291 votes, a difference of 62 votes. The petitioner alleged that the respondent had contested the election by falsely claiming her name as Ansari Dilshad Azmi Aslam, whereas her name in the electoral roll was Ansari Dilshad Azmi Aslam – wife of Ansari Azmi Aslam, and that the name on the electronic voting machine was Dilshad Azmi, which was not enrolled. The Small Cause Court dismissed the petition, holding that the variation was minor and did not amount to a corrupt practice. The High Court upheld this decision, noting that the respondent was a validly enrolled voter, the name discrepancy was trivial, and there was no evidence of fraud or misrepresentation. The court emphasized that the burden of proving a corrupt practice is heavy and was not discharged. The writ petition was dismissed with no order as to costs.
Headnote
A) Municipal Election Law - Corrupt Practice - Name Discrepancy - Section 33 Mumbai Municipal Corporation Act, 1888 - The petitioner challenged the election of the respondent on the ground that the respondent's name in the nomination form differed from that in the electoral roll, alleging a corrupt practice. The court held that the variation was minor and did not affect the identity of the candidate, and that there was no corrupt practice as the respondent was a validly enrolled voter. The election petition was dismissed. (Paras 2-10)
B) Election Law - Burden of Proof - Corrupt Practice - The court reiterated that the burden of proving a corrupt practice lies heavily on the petitioner, and mere discrepancy in name without proof of fraud or misrepresentation is insufficient to set aside an election. (Para 8)
Issue of Consideration
Whether the alleged discrepancy in the name of the elected candidate between the electoral roll and the nomination form amounts to a corrupt practice under Section 33 of the Mumbai Municipal Corporation Act, 1888, warranting setting aside of the election.
Final Decision
The High Court dismissed the writ petition, upholding the judgment of the Small Cause Court. No order as to costs.
Law Points
- Election petition
- corrupt practice
- name discrepancy
- substantial compliance
- Section 33 Mumbai Municipal Corporation Act
- 1888
Case Details
2016 LawText (BOM) (10) 49
WRIT PETITION NO. 10700 OF 2015
Mr. A.V. Anturkar, Senior Advocate a/w. Ms. Anjali Awasthi, Nitesh Acharya, Tanveer Nizam, Shivraj Kunchge and Altaf Khan for the Petitioner; Mr. Nitin Dalvi a/w. T.N. Sagari, R.K. Mendadkar and C.K. Bhangoji for Respondent 1; Mr. Diwakar Tayshete a/w. Vinod Mahadik for Respondent Nos. 2 to 4 – BMC; Ms. D.S. Mondkar-Hule i/b. S.B. Shetye for Respondent 5.
Ansari Dilshad Azmi Aslam alias Dilshad Azmi and others
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Nature of Litigation
Election petition challenging the result of a municipal election on grounds of alleged corrupt practice due to name discrepancy.
Remedy Sought
The petitioner sought to set aside the election of respondent No. 1 and declare herself as the duly elected candidate.
Filing Reason
The petitioner alleged that the respondent contested the election under a false name, which was not enrolled in the electoral roll, amounting to a corrupt practice.
Previous Decisions
The Small Cause Court, Mumbai, dismissed the election petition (Municipal Election Petition No. 90 of 2012) on 20 October 2015.
Issues
Whether the alleged discrepancy in the name of the elected candidate between the electoral roll and the nomination form constitutes a corrupt practice under Section 33 of the Mumbai Municipal Corporation Act, 1888.
Submissions/Arguments
Petitioner argued that the respondent's name in the nomination form (Ansari Dilshad Azmi Aslam) differed from the electoral roll (Ansari Dilshad Azmi Aslam – wife of Ansari Azmi Aslam) and that the name on the voting machine (Dilshad Azmi) was not enrolled, amounting to a corrupt practice.
Respondent contended that the variation was minor and did not affect the identity, and that the respondent was a validly enrolled voter.
Ratio Decidendi
A minor variation in the name of a candidate between the electoral roll and the nomination form does not constitute a corrupt practice under Section 33 of the Mumbai Municipal Corporation Act, 1888, unless it is shown that the variation was fraudulent or misrepresented the identity of the candidate. The burden of proving a corrupt practice lies heavily on the petitioner.
Judgment Excerpts
The Petitioner has challenged the judgment and order passed by the Small Cause Court, Mumbai in Municipal Election Petition No. 90 of 2012 dated 20 October 2015 dismissing the Election Petition filed by the Petitioner under Section 33 of the Mumbai Municipal Corporation Act.
The variation in the name is minor and does not affect the identity of the candidate. The respondent was a validly enrolled voter. There is no corrupt practice.
Procedural History
The petitioner filed Municipal Election Petition No. 90 of 2012 before the Small Cause Court, Mumbai, which was dismissed on 20 October 2015. The petitioner then filed the present writ petition before the High Court of Judicature at Bombay, which was heard and disposed of on 14 October 2016.
Acts & Sections
- Mumbai Municipal Corporation Act, 1888: Section 33
