Bombay High Court
Vaibhav Vasant Birajdar vs The State Election Commission ... on 17 June, 2016
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4425 OF 2016
Vaibhav s/o Vasant Biradar ... Petitioner
Age 38 years, Occu: Legal
Practitioner and Social work,
r/o Yashwant nagar, Latur,
Tq. and District Latur
VERSUS
1. The State Election Commission
of Maharashtra, through its
Commissioner
2. The Additional Commissioner,
Municipal Corporation Latur
and Returning Officer for By-
election of Ward No.11-B,Latur
3. The Commissioner,
Latur Municipal Corporation,
Taluka & District Latur
4. Ayodhya Deendayal Agarwal
Age 50 years, Occu: Household
r/o Netaji Nagar, Latur
Tq. & District Latur
5. Dayanand vishvanath Kalshetti
Age 52 years, Occu: Business
R/o Shamnagar, Latur,
Taluka & District Latur
6. Shameem Chandpasha Shaikh ... Respondents.
Age 35 years, Occu: Business
R/o Near Alampura Masjeed,
Latur, Tq. & Dist. Latur
Mr. V. D. Salunke, Advocate for the petitioner,
Mr. M. B. Bharaswadkar, AGP for the Respondents-State.
Mr. S. T. Shelke, Advocate for respondents 1 and 2.
Mr. A. V. Hon, Advocate for respondent No.3.
Mr. Mohd. Waseemullah, Advocate for respondent No.4
Mr. A. N. Irpatgire, Advocate for respondent No.6.
1/5
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CORAM : R. M. BORDE &
K. L. WADANE, JJ.
DATE : 17th June, 2016
ORAL JUDGMENT (Per Borde, J.):
1. Heard the learned counsel for the parties.
2. Rule. Rule made returnable forthwith and the
petition is heard for final disposal by the consent of
learned counsel for the respective parties.
3. The petitioner is taking exception to the
action of the Returning Officer directing inclusion of
names of 651 voters in the list prepared for elections
to Ward No.11-B of the Municipal Corporation, Latur.
The programme for the election to the aforesaid Ward
11-B of the Municipal Corporation was published on
11.03.3016 by the State Election Commission. As per
the schedule, before finalization of voters list, the
programme for preparation of voters list was published
on 20.02.2016. Preliminary voters list was to be
declared on 04.03.2016. Objections to the voters list
were called and the last date for submission of
objection was 11.03.2016 and after consideration of the
objections, final list of voters was scheduled to be
published on 16.03.2016. It is not the matter of
dispute that final voters list was published on
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16.03.2016, wherein the names of 651 voters from Ward
No.11-B did not find place. It is the stand taken by
the Returning Officer that since the names were not
inadvertently forwarded while preparation of the voters
list and the mistake was noticed at the later stage,
the same has been ratified and the names of 651 voters
have been incorporated in the final list of voters.
4. As per the programme of election, the stage of
acceptance of nomination papers was up to 29.03.2016.
Scrutiny of the nomination papers was scheduled on
30.03.2016 and list of validly nominated candidates was
to be published on the same day. The last date for
withdrawal of nomination papers was prescribed as
01.04.2016 and the date prescribed for allotment of
symbol was 02.04.2016. The final list of contesting
candidates was to be published on 03.04.2016, whereas
the votes were to be recorded on 17.04.2016. It is
also not a matter of dispute that the list of voters
was amended and direction was issued for incorporation
of names of 651 voters on 13.04.2016 i.e. after almost
all the stages of the election were over and only stage
of recording votes was to be completed. It it is not
permissible under the relevant Election Rules to cause
amendment to the list of voters after the same has been
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finally published.
5. In the instant matter, the respondents have
failed to point out as to under which provision, names
of 651 voters are directed to be included after the
stage of publication of final list of contesting
candidates and when only the stage of recording of
votes remained to be completed. The action taken at
the belated stage by the Returning Officer of directing
incorporation of large number of voters is not
authorized by the Law. It may not be necessary to go
into the reasons as to why the directions was issued by
the Returning Officer for inclusion of the names of 651
voters at such a belated stage. Since it is
impermissible in law to direct inclusion of names for
whatever the reasons, the action of the Returning
Officer of directing inclusion of large number of
voters in the final list after its publication is
unsustainable. The writ petition therefore deserves to
be allowed and the same is accordingly allowed in terms
of prayer clause (B).
6. It is informed that in pursuance to the
directions issued by this Court on 16.04.2016, the
votes of 651 voters are kept in separate box. Since
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this Court has ruled against their entitlement to cast
votes, such of those votes which are separately
maintained in EVM machines need not be considered and
it would be permissible for the Returning Officer to
take appropriate steps in that regard.
7. It would be open for the respondents to declare
the results of the election.
8. Rule is made absolute accordingly.
9.
There shall be no order as to costs.
(K. L. WADANE, J.) (R. M. BORDE, J. )
