Introduction
The single judge bench of Justice Sandeep Marne at the Bombay High Court has issued notice to Shiv Sena’s returned candidate Ravindra Waikar on July 29 while hearing a plea seeking declaration of his election as a Returned Candidate to Mumbai North West Lok Sabha constituency as “void”. The response to the notice has been made returnable on September 2. The petition was filed by Shiv Sena – Uddhav Bal Thackeray (UBT) candidate Amol Kirtikar, who lost by a narrow margin of 48 votes in the seat, and sought setting aside of Waikar’s victory and asked the court to declare himself a winner to the seat. The petition maintained that while Kirtikar was leading in the seat with 1 vote more than Waikar after the counting of EVM votes, the contested counting of Tendered Votes and Postal Ballot Votes resulted in Waikar taking over the lead with 48 votes in the end.
Notably, Kirtikar asserted in the petition that as per his election agents he was leading by over 650 votes at the conclusion of EVM vote count, however, the Returning Officer (RO) announced that he was only 1 vote ahead in terms of EVM votes at the end of all 26 rounds, based on the entries made in Form 20. He alleged that their requests for recount was rejected by the RO.
The plea raised several issues with regard to the conduct of elections and particularly the counting of votes by the Returning Officer (RO) and alleged violation of the Representation of the People Act, 1951, Conduct of Election Rules, 1961, and guidelines issued under the Handbook for Returning Officer, 2023.
The petition highlighted the following concerns and violations of the statutory laws:
- Kirtikar alleged that his counting agents were not permitted to sit at the ARO / RO Table, despite being a statutory requirement under the RPA.
- Form 17-C (Part II), which records total votes received by each candidate, was not given to his agents in any of the 563 polling booths of 2 Assembly Segments (158 – Jogeshwari and 164 – Versova) and 276 polling booths of another Assembly Segment (163 – Goregaon).
- No reasonable opportunity was provided to make an application requesting re-count of votes and the RO turned down the written request subsequently made.
- Unauthorized usage of mobile phone inside the counting area, including by the RO, in violation of the RPA and the RO Handbook.
- Impersonation of electors resulting in 333 votes being cast as ‘Tendered Votes’ which went uncounted.
- Discrepancy in the number of ‘Tendered Votes’ recorded in ‘Form 17-C (Part – I) – Account of Votes Recorded’ by the Presiding Officer and ‘Form 20 – Part – II – Final Result Sheet’ recorded by the Returning Officer.
Furthermore, Kirtikar pointed out in the petition that even after several representations were made to the Returning Officer and the District Election Officer (DEO) seeking supply of CCTV recording of the entire counting process, the same was rejected by the DEO in violation of “Clause 19.10 of the 2023 Handbook which unambiguously states that copies of the said video recordings shall be provided upon payment of fees.”
In particular, with regard to the irregularities in the counting of votes, the plea claimed that the “process of counting, announcement and screen display was done up to the 19th round. Thereafter, from the 20th to 25th rounds, the votes were not announced or displayed and nearing the end of the counting, the votes in respect of 20th to 26th rounds came to be announced.” Kirtikar also maintained that CCTV recording would reveal that between 19th and 26th rounds, the RO “continuously” walked off stage and “seemed to be continuously interacting on her mobile phone” in violation of the provisions of the RPA and Election Handbook for the Returning Officer, 2023. Additionally, the plea further maintained that one of the ENCORE operators had lent his mobile phone to one Mr. Mangesh Padilkar, who happens to be a relative of the Returned Candidate, “and the latter in turn was using the same illegally at the counting place”, following which the FIR was registered against Padilkar.
On the issue of discrepancy in account of Tendered Votes, the petition claimed that as per Form 17-C (Part-1) there are 333 Tendered Votes, however, in Form 20, “which is supposed to record the number of ‘tendered votes’ based on Form 17-C (Part I)”, only 213 Tendered Votes are recorded. It said that in the past, Tendered Votes have been counted in similar circumstances and “the non-counting of such votes has materially affected the result of the election.”
Based on these allegations, Kirtikar has asked the Bombay High Court to declare the election of Waikar as a Returned Candidate to be void “under Section 100(1)(d)(iii) and (iv) of the R.P. Act, 1951” and declare the petitioner instead as the winner “in terms of Section 84 r/w Section 101(a) of the R.P. Act, 1951”.
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