Karimuddin @ Karimlala Kazi vs Prakash Bokhad (Commissioner ...
2016 Latest Caselaw 7182 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                                 
                            NAGPUR BENCH, NAGPUR.

                              WRIT PETITION NO. 1176 OF 2015




                                                                   
    Karimuddin @ Karimalala Kazi,
    aged about 50 years, Occupation
    Business, R/o Ghutkala Ward, 
    Chandrapur, Tahsil and District




                                                                  
    Chandrapur                                                        ... PETITIONER

                                               VERSUS

    1. Prakash Bokhad, Commissioner




                                               
         Municipal Corporation of City of
         Chandrapur, Tah. and District
                             
         Chandrapur. (dismissed in default
         against R-1).
                            
    2. Deepak s/o Shankarlal Jaiswal,
         aged about 52 years, Occupation
         Business, R/o Bazar Ward,
         Chandrapur, Tah and District
         Chandrapur.
      


    3. The Commissioner,
   



         Municipal Corporation of City
         of Chandrapur, Tq. and District
         Chandrapur.                                                 ... RESPONDENTS

                                           ....





    Shri A.S. Kilor, Advocate for the petitioner.
    Shri F.T. Mirza, Advocate for respondent No.2.
    Shri M.I. Dhatrak, Advocate for respondent No.3.
                                           ....





                                            CORAM : PRASANNA.B.VARALE, J.

DATED : 14TH DECEMBER, 2016.

ORAL JUDGMENT :

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Rule. Rule made returnable forthwith. Heard finally with the

consent of the learned Counsel appearing on behalf of the respective

parties.

2. By way of present petition, the petitioner challenges the

judgment and order dated 16th January, 2015 passed by the learned Civil

Judge, Senior Division, Chandrapur in Election Petition No. 4 of 2012 to

the extent the election of the petitioner as Corporator is set aside for the

Municipal Corporation, City of Chandrapur.

3. Shri Kilor, the learned Counsel for the petitioner submits that

an identical issue was involved in Writ Petition No. 782 of 2015 and this

Court considering the facts of the matter as well as the judgment of the

Apex Court in the case of Union of India and others .v. Bakshi Ram

(reported in AIR 1990 SC 987), was pleased to allow the writ petition. The

judgment and order dated 16th January, 2015 passed by the Election

Tribunal in Election Petition No. 1 of 2012 was quashed and set aside.

4. Perused the judgment and order of this Court dated 26th

August, 2015. The issue before this Court was whether the petitioner was

suffering disqualification under Section 10 of the Maharashtra Provincial

Municipal Corporation Act, 1949 on the date of election i.e. on 16.04.2012.

Though the learned Sessions Judge convicted the petitioner for the

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offences punishable under the Indian Penal Code and the Arms Act and

the petitioner was sentenced to suffer simple imprisonment for one year,

in the appeal presented before this Court, this Court maintained the

conviction but set aside the sentence. This Court in the appeal was of the

opinion that considering the evidence and the facts and circumstances,

the appellant was entitled for one chance to reform and as such the order

of conviction though was maintained, the order of jail sentence imposed

on the appellant was set aside. The appellant was directed to be released

on entering into a bond of good behaviour and conduct for a period of one

year. Considering this aspect of the matter as well as the judgment of the

Apex Court in the case of Union of India and others .v. Bakshi Ram (cited

supra), this Court arrived at a conclusion that it cannot be, therefore, said

that the petitioner was disqualified under Section 10 of the Maharashtra

Provincial Municipal Corporation Act, on the date of his election as a

Member of the Municipal Corporation. This Court further found that the

trial Court committed error of law in setting aside the election petition of

the petitioner on such ground. Resultantly, the petition was allowed.

5. As the facts involved in the instant petition are identical to the

facts in Writ Petition No. 782 of 2015, I see no reason to take a different

view than the view adopted by this Court in the judgment and order dated

26th August, 2015 in Writ Petition No. 782 of 2015.

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6. In the result, the writ petition is allowed. The judgment and

order dated 16th January, 2015 passed by the Election Tribunal in Election

Petition No. 4 of 2012, is hereby quashed and set aside. Election Petition

No. 4 of 2012 is dismissed.

7. Rule is made absolute in the aforesaid terms. No orders as to

costs.

ig JUDGE

*rrg.