Case Note & Summary
The petitioner, Ansari Sana Masood, filed a writ petition challenging the judgment and order 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 5,353 votes, the petitioner 5,291 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 petitioner contended that this amounted to a corrupt practice. The Small Cause Court dismissed the petition, holding that the variation was minor and did not affect the identity of the candidate. The High Court, in its judgment dated 14 October 2016, upheld the decision of the Small Cause Court. The court noted that the respondent was the same person enrolled in the electoral roll, and the discrepancy in the name was not a corrupt practice. The court emphasized that the burden of proving a corrupt practice lies heavily on the petitioner, and the petitioner failed to discharge that burden. The writ petition was dismissed, and the election of the respondent was upheld.
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 the same person enrolled in the electoral roll. The election petition was dismissed. (Paras 2-10)
B) Municipal Election Law - Burden of Proof - Corrupt Practice - Section 33 Mumbai Municipal Corporation Act, 1888 - The court held that the burden of proving a corrupt practice lies heavily on the petitioner, and mere discrepancy in name without evidence of fraud or misrepresentation is insufficient to set aside an election. The petitioner failed to discharge this burden. (Paras 8-10)
Issue of Consideration
Whether a minor variation in the name of a 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, and confirmed the election of respondent No. 1.
Law Points
- Election petition
- corrupt practice
- name discrepancy
- substantial compliance
- Section 33 Mumbai Municipal Corporation Act
- 1888
Case Details
2016 LawText (BOM) (10) 51
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 the petitioner as the duly elected candidate.
Filing Reason
The petitioner alleged that respondent No. 1 contested the election by falsely claiming her name as Ansari Dilshad Azmi Aslam, whereas her name in the electoral roll was different, and the name on the electronic voting machine was not enrolled, 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 variation in the name of the respondent 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 was different from that in the electoral roll, and the name on the electronic voting machine was not enrolled, which is a corrupt practice.
Respondent argued that the variation was minor and the respondent was the same person enrolled in the electoral roll; no corrupt practice was involved.
Ratio Decidendi
A minor variation in the name of a candidate between the electoral roll and the nomination form does not amount to a corrupt practice under Section 33 of the Mumbai Municipal Corporation Act, 1888, as long as the identity of the candidate is clear and the same person is enrolled. The burden of proving a corrupt practice lies heavily on the petitioner, and mere discrepancy without evidence of fraud or misrepresentation is insufficient to set aside an election.
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 election in question is of Ward No.158, Kurla Village, Mumbai. The declaration of election was made on 3 January 2012.
Out of total votes of 19,703, the Respondent No.1 – the elected candidate secured 5353 valid votes and the Petitioner secured 5291 valid votes. There was a difference of 62 votes.
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 Writ Petition No. 10700 of 2015 before the High Court of Judicature at Bombay, which was dismissed on 14 October 2016.
Acts & Sections
- Mumbai Municipal Corporation Act, 1888: 33
