Decided on October 09,2020

Kanagsabapathy Sundaram Pillai Appellant
Bansi Gawali Respondents


K R SHRIRAM,J. - (1.) Petitioner has approached this court for various reliefs including for a declaration that petitioner be declared as the returned candidate to fill the post 31 PC-Mumbai-South, under Section 101 of the Representation of People Act 1951 (the said Act).
(2.) Before I proceed further, I need to mention that after I heard the parties, I had expressed my view to petitioner who appeared in person, and who stated is an Advocate (But in affidavit in support he says he is a Doctor of Medicine by profession, retired medical teacher), that I am inclined to dismiss the petition under the provisions of Section 86(1) read with Section 82 of the Act. Petitioner stated that if that is the case, he may be permitted to withdraw the petition. I asked Mr. Joshi and Mr. Rajagopal, whether I could permit petitioner to withdraw the petition, and Mr. Joshi pointed out that in view of Section 109 of the Act, there is a procedure prescribed that all parties to petition should be given notice and it shall be published in official gazette if the court is inclined to permit petitioner to withdraw the petition. I asked Mr. Joshi since only two respondents are parties to the petition and if they give consent, whether we could permit petitioner to withdraw the petition. Petitioner stated that under the Act there is no provision that he could withdraw the petition. Though, I do not agree with petitioner's stand, to avoid any further discussion, I decided to pass this order.
(3.) The facts in brief are that petitioner wanted to contest election from 31-PC Mumbai-South, as an independent candidate. Petitioner collected the nomination forms with enclosures on 2-4-2019 and submitted the form with respondent no.1 on 9-4-2019, which was the last date for submission of nomination form. Petitioner's form was checked by staff of respondent no.1 as to whether all requirements in the checklist were complied with and petitioner was asked to deposit a sum of Rs.25,000/- as candidate deposit. Petitioner paid the amount and the original of receipt was retained by the staff of respondent no.1. On the checklist, the signature of petitioner was taken and respondent no.1 also signed the same putting the date and time as 9-4-2019 at 2.10 p.m. Petitioner was told that the documents filed by petitioner did not exactly tally with the checklist and petitioner was told to comply with the objections latest by 3.00 p.m. on 9-4-2019. The objections raised were given to petitioner. Affidavit, which was submitted, however, was not returned to petitioner. Petitioner, thereafter, received a call at about 7.00 p.m. on 9-4-2019 from three numbers and the caller identified themselves as election staff and asked petitioner to immediately go to the office of respondent no.1 with all letters and materials that he was given by office of respondent no.1 that morning. It seems, petitioner was informed that the checklist given that day was to be withdrawn. Petitioner, with great difficulty went the same night to the office of Returning Officer accompanied by his spouse. Returning Officer gave petitioner another letter, which petitioner later realised was a second checklist, which modified the checklist given in the morning and petitioner was asked to file revised affidavit in form no.26 by 11.00 a.m. on 10-4-2019. What was in the first checklist and what was in the revised checklist can be found in paragraphs 5 and 7 of the petition. To petitioner's shock, the first affidavit submitted on 9-4-2019 by petitioner was uploaded in the website of Election Commission of India and Chief Electoral Officer, Maharashtra, without waiting for petitioner to submit a revised affidavit. Based on that, Petitioner's nomination was also rejected and according to petitioner, the rejection was illegal. It is also petitioner's case that respondent no.2 and other candidates had also not fill up the forms as required, particularly regarding their criminal antecedents, and therefore, respondent no.1 should have rejected their forms as well. According to petitioner, only his nomination form and enclosures were correct and in accordance with rules, and therefore, he would have been the sole candidate and hence should have been declared as returned candidate.;

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