Dismissed

Mohanlal Motilal Bhandari v. Election Commissioner of India, New Delhi and Ors.

Bombay HC16 Sept 2014PIL/64/2012

Case brief

AI extract

What is this about?

In a PIL concerning the 2011 Daund Nagar Parishad elections, the petitioner alleged violations of the Model Code of Conduct, including cash distribution and false asset affidavits. The court held that specific grievances were already redressed and the State Election Commission (SEC) has dealt with complaints appropriately. The court dismissed the petition, noting that formulating election rules is

What did the court decide?

The PIL was dismissed with costs borne by the parties.

Mohanlal Motilal Bhandari Vs Election… — Constitutional and Fundamental Rights | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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PUBLIC INTEREST LITIGATION NO.64 OF 2012

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Mohanlal Motilal Bhandari ) Aged 61 years, Occupation- Business ) R/o.Bhandari Niwas, Gandhi Chowk ) At Post Tal.Daund. ) District – Pune )...Petitioner.

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Vs.

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1.Election Commissioner of India, ) New Delhi. ) ) 2.State Election Commission, ) New Administrative Building, ) Opposite Mantralaya, Mumbai-400032 ) ) 3. Nagarik Hit Savrakshan Mandal, ) C/o.Katariya Premsukh Kisandas ) Gandhi Chowk, At Post Taluka Daund ) District: Pune. ) ) 4. Katariya Premsukh Kisandas, ) Gandhi Chowk, At Post Taluka Daund ) District : Pune. ) ) 5. Returning Officer ) Daund Nagar Parishad, Daund, ) District : Pune ) ) 6. State of Maharashtra, ) (Notice to be served on the A.G.P., ) High Court, Mumbai. )...Respondents

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Mr.Milind Deshmukh, for the Appellant.

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Mr.Sachindra B.Shetye, for Respondent no.2.

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Mr.Siddhesh Pilankar i/b. Mr.Uday P.Warunjikar, for Respondent no.4.

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Mrs.M.P.Thakur, AGP for Respondent no.6.

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CORAM: A. S. OKA & G. S. KULKARNI, JJ.

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DATED: 16^th SEPTEMBER,2014 ---

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JUDGMENT :- ( Per G.S.Kulkarni, J. )

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By an order dated 2^nd April,2012, on a preliminary objection raised on behalf of respondent no.4, this petition was ordered to be converted as a Public Interest Litigation.

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The grievance of the petitioner is concerning the election of Daund Nagar Parishad held in the year 2011. The Election Commission of India was initially impleaded as respondent No.1 and was directed to be deleted by an order dated 6^th March,2013 as the elections pertaining to Nagar Parishad would be within the purview of respondent no.2-State Election Commission.

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The petitioner has prayed for the following reliefs:-

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“(a) This Hon'ble Court may be pleased to direct the

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Respondent No.2 to conduct inquiry forthwith in view of existing guidelines about the breach of Code of

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Conduct by the candidates who contested the election of Daund Nagar Parishad held on 13.12.2011.

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(b) This Hon'ble Court may be pleased to direct the Respondent No.2 to register F.I.R. against the candidate for whom said Umesh Maruti Chalwadi was found paying money to voters in election of Daund Nagar Parishad held on 13.12.2011. (c) This Hon'ble Court may be pleased to direct the Respondent No.1 Election Commission of India and Respondent No.2 State Election Commission consider this aspect to formulate strict guidelines and Rules to take action against persons who commits breach of Code of Conduct for fair elections which is basis of Democracy in the interest of justice.

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(d) Such other and further reliefs be granted as the nature and circumstances of the case may be require.”

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The case of the petitioner is that the election of Daund Nagar Parishad was held on 13^th December,2011. The election process for the election of Municipal Council was started on 1^st November,2011 on which date the model Code of Conduct was made applicable to the area of Daund Nagar Parishad. On 10^th December,2011, one Umesh Maruti Chalwadi was found with money and voters' list and was paying money to the voters to vote for the candidates of

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respondent no.3. A first information report was lodged by the police against Umesh as also the intimation of the same was given to the Returning Officer. It is the petitioner's contention that the police machinery will take its own time to investigate the matter. That this act was in violation of the Code of Conduct and there was no action taken against the candidates in Ward No.2 from the Panel of respondent No.3.

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The second grievance of the petitioner is that the candidate who wish to contest the election is required to give details of his income, property in a prescribed form and he is required to give information of his income and property in the prescribed form on affidavit. The petitioner has referred to the case of one Smt.Swati Arun Kulthe who got elected from Ward No.6 to submit that the said candidate had not declared her property or the property of her husband and her daughter. It is the petitioner's case that filing of such false affidavit is also a breach of Code of Conduct. It is urged that such affidavits should not be mechanically accepted by the Returning Officers and that the affidavits are never verified subsequently.

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It is the petitioner's case that respondent no.3 in view of the said election had promised to fix a statue of Dr.Babasaheb Ambedkar and used a picture of the proposed statue. It is submitted that this also was a breach of the Code of Conduct. It is further urged that respondent no.3 is running an Education Institute and had organized a parents teachers meeting when the

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election campaign was going on and that respondent no.3 was giving warning to the parents to vote for respondent no.3 as their children were studying in the educational institution run by respondent no.3. It is the petitioner's case that the complaints were made to the Returning Officer who simply directed the respondent no.4 – Secretary of the Institute to organise such meeting after the elections are over without making an inquiry about the genuineness of the complaint. It is further pointed out that one Shakil Ahamad Sikandar Sayyed and his wife Rehana had filed nomination forms from Ward No.2 and there were lot of discrepancies in the declaration of the respective properties and those affidavits were mechanically accepted.

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The petitioner on the basis of the aforesaid instances has urged that it is necessary for respondent no.2 to undertake an exercise to verify all the affidavits which are filed alongwith the nomination by the concerned candidates so as to verify the genuineness of the information. It is submitted that in such cases where there is breach of the Code of Conduct, effective infrastructure is required to be created so as to take action against such persons for violating the Code of Conduct so as to have free and fair election. It is the petitioner's case that various complaints and representations are made to the Authorities, however, no steps are taken in regard to those complaints.

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On behalf of respondent no.2 reply affidavit of Shri.Avinash

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Tukaram Sanas, Assistant Commissioner, State Election Commission has been filed to oppose the petition. The affidavit states that in regard to the violation of the Code of Conduct, as complained against respondent No.3 in regard to parents' meeting being conducted by it and the allegation that respondent No.3 had promised to fix the statue of Dr.Babasaheb Ambedkar and to that effect a proposed picture was issued, it is stated that the Election Oficer had conducted necessary inquiry pursuant to the said complaint and the report to that effect was submitted by the Election Officer on 12^th December,2011. It is stated that, according to the report, it was found on inquiry that there was no breach of Code of Conduct and accordingly, the complaint was disposed of. In regard to the meeting of the parents as alleged by the petitioner, it is stated that on a complaint of Shri.Ajit Baldota, the President of NCP, Daund City, that the respondent No.3 is organising meetings between the teachers and parents and is using such meetings for campaigning, the Institution was immediately informed about the said complaint and an explanation was called for. The Headmistress of the School of the said Education Society by her letter dated 5^th December,2011 had denied the allegations made in the complaint. This letter of the Headmistress is annexed to the affidavit. It is stated that as regards prayer clause (a), the grievance of the petitioner has already been redressed as the inquiry in respect of both these complaints was conducted by the Returning officer. As regards incident dated 10^th December,2011 of Shri.Umesh Maruti Chalwadi who was found in possession of cash of Rs.1.38 lakhs, it is sumitted that after taking

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approval from the Judicial Magistrate First Class, Daund, investigation was carried out by the Investigating Agency viz. Daund Police Station. A final report was submitted on 6^th March,2012 and a Criminal Case no.143 of 2012 is registered and pending before the Court of Judicial Magistrate in which Shri.Umesh Maruti Chalwadi has been made the accused. It is submitted after the investigation was completed a chargesheet has been filed against Shri.Umesh Maruti Chalwadi. It is stated that during the course of investigation, the Investigating Officer has recorded statements of 17 persons including panch witnesses. It is stated that however, the Investigating Agency could not point out on whose behalf the said money has been distributed by the accused, and therefore, no offence was registered against any of the candidate of Ward No.2.

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As regards prayer clause (c), it is stated that the State Election Commission has already formulated Model Code of Conduct. The State Election Commission has issued order an order on 29^th December,2011 to implement the said Model Code of Conduct. As also comprehensive guidelines are displayed on the website of the said State Election Commission and that the guidelines are being followed in its letter and spirit. It is, therefore, submitted that the grievance of the petitioner was already redressed in view of these guidelines of the Model Code of Conduct. It is submitted that as regards the grievance of the petitioner that in view of the order dated 15^th March,2004 issued by the State Election Commission under which the candidates are directed file affidavit of

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assets alongwith nomination, it is stated that the provisions of paragraph 6 of that order makes it clear that the Returning Officer is not required to probe into the genuineness of the affidavit and cannot reject nomination form for the reason of false information given in affidavit. It is submitted that the petitioner has, for the first time in this Writ Petition has made a grievance of filing of a false affidavit. It is stated that the State Election Commission upon receipt of the Inquiry Report, upon a specific complaint had taken a decision and directions were issued to file a complaint against the Corporators of Thane Municipal Corporation for filing false affidavit of disclosure of the assets. It is stated that the present petition does not deserve any interference.

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On behalf of the petitioner, it is urged that the respondent no.2 is under an obligation to take action against the candidates for breach of Model Code of Conduct. It is submitted that the affidavits of assets which have filed by the candidates alongwith their nomination paper should be investigated before the nomination forms of such candidates are accepted. It is urged on behalf of the petitioner that the complaints which are pointed out clearly indicate that some infrastructure is required to be created so as to hold an inquiry on this issue for free and fair elections to be conducted by respondent no.2.

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The learned Counsel for the respondent no.2 submits that the respondent no.2 strictly adhered to the Model Code of Conduct and that all complaints which were received have been appropriately dealt with and they

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have been taken to the logical conclusion as pointed out in the affidavit. The learned counsel has referred to the contents of the affidavit in support of the submissions.

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We have examined the issues as raised in this Public Interest Litigation , the reply affidavit filed on behalf of respondent no.2. We have considered the submissions as advanced by the respective Counsels. The petitioner has shown a concern by pointing out certain instances which according to him amount to violation of Code of Conduct. The instances are firstly Mr.Umesh Maruti Chalwadi was found with cash alongwith the voters' list. It is the allegation of the petitioner that this cash was being distributed for the benefits of the candidates of respondent no.3. The other instance of violation of Code of Conduct as pointed out by the petitioner is in regard to the parents – teachers meeting being conducted by the Educational Institution established by respondent no.3. It is contended that this meeting was used for the purpose of campaigning when the model Code of Conduct was in operation. The other grievance of the petitioner is in regard to the promise of respondent no.2 to fix a statue of Dr.Babasaheb Ambedkar and using of picture of the proposed statue amounting to violation of the Code of conduct. A further grievance of the petitioner is about discrepancy in the affidavits filed by the candidates which do not reflect the correct picture of their assets.

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The respondent no.2 has categorically set out in its reply that

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appropriate action has been taken by filing a criminal case against one Mr.Umesh Maruti Chawadi who was found with cash, and a chargesheet was filed and the said criminal case is pending adjudication before the Court of Judicial Magistrate First Class at Daund. As regard the instances of false affidavits being filed by some of the candidates, the respondent no.2 has categorically stated in the affidavit in reply that under the order dated 15^th March,2004 issued by the State Election Commission, the Returning Officer is not required to probe into the genuineness of the affidavit filed by the candidates alongwith the nomination form and on this ground cannot reject the nomination form. As regards the complaint in regard to the parents meetings being utilised for the purpose of campaigning, this complaint has already been appropriately dealt with and an explanation to that effect was invited from the Headmistress of the concerned school and same is placed on record of this Writ Petition. As regards the complaint in regard to the statue of Dr.Babasaheb Ambedkar is concerned, the Election Officer has conducted an appropriate inquiry in pursuance of the said complaint and a report to that effect was called from the concerned officer on election duty viz. the Section Incharge (Code of Conduct). The Election Nayab Tahasildar has submitted his report to the Returning Officer and it was found that there was no breach of the Code of Conduct and the complaint was accordingly, disposed of. It is thus clear that the grievances as raised by the petitioner have been redressed at the appropriate time by respondent no.2.

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As regards the blanket directions as prayed by the petitioner in

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prayer clause (c) that the respondent no.2 should consider the aspect of formulating strict guidelines and Rules to take action against the persons who commits breach of Code of Conduct, we are of the opinion that such directions cannot be issued by this Court in exercise of our jurisdiction under Article 226 of the Constitution of India. The respondent no.2 has already issued a Model Code of Conduct. This Model Code of Conduct is framed in pursuance of the directions issued by Pubjab and Haryana High Court in Writ Petition no.270 of 1997 in the case of “Shri.Harbanslal Jalal Vs. Union of India & Ors.”. This decision of Punjab and Haryana High Court was confirmed by the Supreme Court in the Special Leave Petition (Civil) No.22724 of 1997. In pursuance of these directions of the Punjab and Haryana High Court, the Election Commission of India has taken up the issue with the various State Election Commissions to frame the model Code of Conduct for elections. The Supreme Court in terms has observed that in view of the directions of Punjab and Haryana High Court on this issue, no further directions were required to be issued. Accordingly, Model of Code of Conduct which is in the nature of guidelines has been implemented from time to time as also appropriate actions are taken whenever a complaint has been received by the State Election Commission. All these actions are completely within the domain of the Election Commission and cannot be made justiciable under the jurisdiction of this Court under Article 226 of the Constitution of India.

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In any event such directions also cannot be issued for the reasons that the framing of such rules concerning free and fair elections is completely within the

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legislative domain falling under Part XV of the Constitution of India.

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In the light of the above observations, the Public Interest Litigation lacks merit and the same is accordingly dismissed. The parties to bear their own

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cost.

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(G. S. KULKARNI, J.) (A.S.OKA, J.)

Mohanlal Motilal Bhandari v. Election Commissioner of India, New Delhi and Ors.

Case brief

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Mohanlal Motilal Bhandari v. Election Commissioner of India, New Delhi and Ors.

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