Bombay High Court
Mahadeo Bhimrao Kendre vs State Election Commission And ... on 23 March, 2016
Bench: S.V. Gangapurwala
1 WP2395.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2395 OF 2013
Mahadeo S/o Bhimrao Kendre,
Age : 40 Years, Occu. : Agriculture,
R/o. : Bhojnakwadi, Post : Dharmapuri,
Tq. : Parli-Vaijanath, Dist. : Beed. .. Petitioner
Versus
1. State Election Commission.
2.
The Election Officer,
Mr. M. K. Karad,
Age : 50 Years, Occu. : Service
Panchayat Samiti, Parli-Vaijanath
3. The Tahsildar,
Parli-Vaijanath,
Dist. : Beed
4. The Collector,
Beed, Dist. : Beed
5. Sau. Chhayabai Vithal Kendre,
Age : 50 Years, Occu. : Agriculture,
R/o. : Bhojnakwadi, Post : Dharmapuri,
Tq. : Parli-Vaijanath, Dist. : Beed
6. Anita Umesh Dighole,
Age : __ Years, Occu. : Agriculture,
R/o. : Bhojnakwadi, Post : Dharmapuri,
Tq. : Parli-Vaijanath, Dist. : Beed
7. Chandrakant Bhanudas Fad,
Age :__ Years, Occu. : Agriculture,
R/o. Bhojnakwadi, Post : Dharmapuri,
Tq. : Parli-Vaijanath, Dist. : Beed
8. Golal Bamaji Fad,
Age : 45 Years, Occu. : Agriculture,
R/o. : Bhojnakwadi, Post : Dharmapuri,
Tq. Parli-Vaijanath, Dist. : Beed
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9. Mathurabai Chimnaji Kedar,
Age : 50 Years, Occu. : Agriculture,
R/o. : Bhojnakwadi, Post : Dharmapuri,
Tq. : Parli-Vaijanath, Dist. : Beed
10. Sachita Rajabhau Kedar,
Age : 25 Years, Occu. : Agriculture,
R/o. : Bhojnakwadi, Post : Dharmapuri,
Tq. : Parli-Vaijanath, Dist. : Beed .. Respondents
Shri V. D. Salunke, Advocate for the Petitioner.
Shri S. T. Shelke, Advocate for the Respondent No. 1.
Respondent No. 2 Served.
Shri S. G. Karlekar, A. G. P. for Respondent Nos. 3 and 4.
Shri S. S. Thombre, Advocate for Respondent Nos. 5 to 10.
CORAM : S. V. GANGAPURWALA AND
A. M. BADAR, JJ.
CLOSED FOR JUDGMENT ON : 04.03.2016
JUDGMENT PRONOUNCED ON : 23.03.2016
JUDGMENT (Per S. V. Gangapurwala, J.) :-
1. The petitioner vide the present petition seeks declaration
that the election of Grampanchayat, Bhojnakwadi, Post -
Dharmapuri, Taluka - Parli-Vaijanath be set aside and the election
of Respondent Nos. 5 to 10 i.e. elected members of the
Grampanchayat, Bhojnakwadi be set aside and directions be
issued to conduct fresh elections.
2. Mr. Salunke, the learned counsel for the petitioner states
that, provisional voters list for election was published. The
petitioner alongwith other voters took objection to the provisional
voters list thereby stating that bogus names are included in the
voters list. The voters list contains the names of residents of
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other villages. There were also names of the persons who have
not attended the age of majority in the voters list. However, the
said objections have not been dealt with nor have been decided
and pursuant to the said illegal and incorrect voters list the
election for members of the Grampanchayat, Bhojnakwadi has
taken place. The petitioner has pointed out specifically names of
the persons whose names appeared in the voters list of other
villages as voters in the Grampanchayat election and also in the
voters list of Bhojnakwadi Grampanchayat. Even, specific names
were given of the persons who had not attained the age of
majority but whose names appeared in the voters list, however,
blind eye was turned by the Respondents / Authorities to the
same. The learned counsel relies on the judgment of the Apex
Court in a case of K. Venkatachalam V/s. A. Swamickan and
another reported in A. I. R. 1999 S. C. 1723 (1).
3. According to the learned counsel, the election based on
such illegal voters list cannot be sustained. Some of the persons
who have voted in Grampanchayat elections of Bhojnakwadi and
also of other Grampanchayats and proof of the same is also
placed on record. This would establish that the election for the
Members of Grampanchayat, Bhojnakwadi has been materially
affected because of such illegal votings. The learned counsel
submits that, Election Petition on the ground that the list of voters
was incorrect is not tenable. As such, the writ petition is the only
efficacious remedy available. The learned counsel relies on the
judgment of Division Bench of this Court in a case of Dhondba
and another V/s. Civil Judge, Junior Division, Hinganghat
and others reported in 1966 Mh. L. J. 869. The elections
cannot be held on the basis of such bogus list of voters and if
objections are overlooked this High Court can interfere. The
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learned counsel relies on the judgment of the Division Bench of
this Court in a case of Shivaji Marotrao Suryavanshi V/s.
State of Maharashtra and others reported in 2000 (2) Mh. L.
R. 277.
4. The learned counsel further submits that, merely because
whole election is challenged that would not mean that the petition
is not maintainable. If, wide scale illegalities are committed in the
election process the whole election can be challenged by way of
writ petition. The learned counsel relies on the judgment of the
Apex Court in a case of Bar Council of Delhi and another V/s.
Surjeet Singh and others reported in A. I. R. 1980 S.C. 1612.
According to the learned counsel when the foundation of election
itself is based on manipulation then this Court can exercise its
extraordinary jurisdiction under Article 226 of the Constitution of
India. The learned counsel relies on the judgment of the Division
Bench of this Court in a case of Bhaurao Kalu Koli V/s. State of
Maharashtra and others reported in 2007 (6) B. C. R. 6. The
learned counsel relies on the judgment of The Chief
Commissioner of Ajmer and another V/s. Radhey Shyam
Dani reported in A. I. R. 1957 S. C. 304, to submit that the
elections held on imperfect Electoral Rolls would acquire no
validity and would be liable to be challenged at the instance of
parties concerned. As it is the essence of the elections that
proper Electoral Rolls are maintained. It is also the duty of the
Authorities to see that the persons enrolled as electors possessed
the requisite qualifications. The learned counsel submits that,
though under Section 12 of the Bombay Village Panchayats Act,
1958 the Electoral Rolls of the Maharashtra Legislative Assembly
prepared under the provisions of the Representation of Peoples
Act, 1950 is to be adopted as list of voters for such ward or
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village. Still, Section 13 of the Bombay Village Panchayats Act,
1958 clearly lays down that it is only the persons qualified to vote
can only find their place in valid voters list. If, the persons are not
the residents of the village they cannot be valid voters for the
election of the members of the Grampanchayat of the said village.
This aspect has not been considered while preparing the voters
list.
5. Mr. Salunke, the learned counsel further contends that, even
as per Section 17 of the Representation of Peoples Act, 1950 no
than one constituency.
person is entitled to be registered in the electoral roll for more
The said provision would apply in the
present case also as there is no provision in the present statute.
6. Mr. Shelke, the learned counsel submits that, the objection
has to be submitted in Form No. 7 raising objection to the voters
list which is not submitted by the petitioner. The voters list is
prepared as per Section 12 of the Bombay Village Panchayats Act,
1958. The said voters list is inconsonance with the voters list of
Maharashtra Legislative Assembly. The petitioner has no where
shown that the said voters list is not in conformity with the voters
list of Maharashtra Legislative Assembly.
7. Mr. Thombre, the learned counsel for the Respondent Nos. 5
to 10 submits that, the elections have been conducted on the
basis of a valid voters list. The petitioner himself contested the
election on the basis of the same voters list and after having lost
in the election has approached this Court that too after the period
for filing Election Petition was over. The respondents are declared
as elected candidates on 27.11.2012 and the petitioner has filed
the present petition in February, 2013. The petitioner has not
availed the alternate remedy of filing Election Petition. There are
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disputed questions of fact involved. The learned counsel submits
that, even as per Article 243 (O) of the Constitution of India there
is a clear bar for interference in the election process in the writ
jurisdiction. The voters list is in conformity with Section 12 and
13 of the Bombay Village Panchayats Act, 1958.
8. We have considered the submissions canvassed by the
learned counsel for respective parties.
9. Before we advert to the submissions canvassed by the
learned counsel for respective parties it would be appropriate to
refer to the relevant provisions -
"The Bombay Village Panchayats Act, 1958
Section 12 [List of voters]
(1) The electoral roll of the Maharashtra Legislative
Assembly prepared under the provisions of the
Representation of the Peoples Act, 1950 (XLII of
1950), and in force on such day as the State Election
Commissioner may by order notify in this behalf for
such part of the constituency of the Assembly as is
included in a ward or a village shall be the list of
voters for such ward or village.
(2) An officer designated by the State Election
Commission in the this behalf shall maintain a list of
voters for each such ward or village.
Section 13 [ Persons qualified to vote and be
elected]
(1) Every person who is not less than 21 years of
age on the last date fixed for making nomination for
every general election or bye-election and whose
name is in the list of voters shall, unless disqualified
under this Act, or any other law for the time being in
force, be qualified to vote at the election of a member
for the ward to which such list pertains.
(2) Every person whose name is in the list of voters
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shall, unless disqualified under this aCt or under any
other law for the time being in force, be qualified to
be elected for any ward of the village. No person
whose name is not entered in the list of voters for
such village shall be qualified to be elected for any
ward of the village.
(3) Subject to any disqualification incurred by a
person, the list of voters, shall be conclusive evidence
for the purpose of determining under this Section
whether any person is qualified or is not qualified to
vote, or as the case may be, is qualified or is not
qualified to be elected, at any election."
"The Bombay Village Panchayats Election Rules,
Rule - 3 [Maintenance and custody of lists of
voters]
(1) The Officer designated by the State Election
Commissioner under sub-section (2) of Section 12 of
the Act shall maintain a list of voters of each ward of
the village which shall contain the names of all
persons who are enrolled as voters in the electoral roll
of the Maharashtra Legislative Assembly from that
part of the constituency of the Assembly as is
included in each such ward. Such officer shall
authenticate each list of voters so maintained and
shall sign every page thereof and shall seal it with
the common seal of the panchayat.
(2) The officer aforesaid shall from time to time
carry out in the authentic copy of each list of voters
maintained under sub-rule (1) all corrections which
may be made in the electoral roll of the Maharashtra
Legislative Assembly and shall initial below each
correction so made.
(3) The lists of voters maintained under this rule
shall be kept in the panchayat chest or safe under
lock and key and the officer whose duty is to keep the
key of the chest or safe shall be responsible for the
safe custody of the said lists.
(4) Copies of lists of voters maintained under this
rule shall be kept open for public inspection at the
village chavdi if any , and at the village panchayat
office.
(5) The an officer authorised by the State Election
Commissioner shall at least fifteen days before the
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date fixed for the nomination of candidates for every
general election of the village panchayat, give a
public notice of the places where copies of the
relevant lists of voters are kept open for public
inspection. Such notice shall be affixed at the village
panchayat office and at the village chavdi, or if there
be no village chavdi, at any other conspicuous public
place in the village ."
10. It is a fact that the petitioner contested the election held for
the member of a Grampanchayat,, Bhojnakwadi and after having
lost in the election has filed the present writ petition. It can be
gathered from the documents filed that the petitioner had initially
raised objection to the voters list on the grounds -
{1} name of some of the voters also appear as voters
for other Grampanchayat,
{2} the voters list contain names of persons who are
dead,
{3} it also contain names of persons who have not
attained the age of majority.
11. Perusal of the scheme of preparation of voters list for the
election of a Grampanchayat it is manifest that Sections 12 and
13 of the Bombay Village Panchayats Act, 1958 and Rule 3 of the
Bombay Village Panchayats Election Rules 1959 are to be
considered. Section 12 of the Bombay Village Panchayats Act,
1958 lays down that the electoral roll of Bombay Legislative
Assembly prepared under the Representation of Peoples Act, 1950
and in force on such date as the State Election Commissioner may
by order notify in this behalf for such part of the constituency of
the Assembly as is included in a ward or a village shall be the list
of voters for such ward or village. The persons whose names
appeared in the voters list of the Maharashtra Legislative
Assembly are required to be maintained. The Panchayat Act and
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the Rules do not provide for machinery to consider the objection
about non-attainment the age of majority. If the name of such a
person appears in the Maharashtra Legislative Assembly Voters
list then his name is to be included in the voters list of the
panchayat elections. The correction will first have to be carried
out in that regard in the Maharashtra Legislative Assembly Voters
List. In the present case, no such application was made to carry
out the necessary amendment in the voters list of Maharashtra
Legislative Assembly. The same is to be adopted for elections of
the panchayat. The same would apply in case of the voters who
according to the petitioner were no more.
12. One of the major grievance of the petitioner is that the
voters list of Bhojnakwadi contain the names of the persons
whose names also appear in the voters list of another
Grampanchayat. Section 12 of the Bombay Village Panchayats
Act, 1958 as observed above requires that the officer designated
by the State Election Commissioner shall maintain the list of
voters for each such ward or village. It has to notify the voters list
for such part of the constituency of the Assembly as is included in
a ward or a village shall be the list of voters for such ward or
village.
13. In writ jurisdiction it cannot be considered whether the said
persons were not residents of Bhojnakwadi village or were
residents of some other village. We would have considered this
objection, had the petitioner approached this Court before the
conduct of election or before he had filled in his nomination paper.
It is trite that, if, the illegality strikes at the root of the matter
then, this Court can exercise its jurisdiction under Article 226 of
the Constitution in appropriate matter but not as a matter of
course. Further here in this case, though, initially petitioner
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raised the objection to the voters list, the petitioner subsequently
filled in the nomination and contested the election on the basis of
the same voters list and after having lost in the election after
lapse of 3 to 4 months has approached this Court. The petitioner
took a chance on the basis of the same voters list to get elected.
However, having failed in the election has approached this Court.
The petitioner submitted himself to the said voters list. The
petition at the behest of such a litigant certainly cannot be
entertained. There was certainly much time gap between the
preparation of the final voters list and filing in the nominations.
However, the petitioner did not challenge the voters list earlier by
approaching the Court. On the contrary ventured to contest the
election on the basis of same voters list. In light of the above, we
are not inclined to entertain the petition.
14. There is another facet to the case though none of the
parties has raised any objection to the same. On going through
the documents filed by the petitioner it is found that the
petitioner had contested the election from ward No. 1 against
Shrirang Maroti Fad and said Shrirang Maroti Fad is declared
elected having defeated petitioner by 12 votes. Said Shrirang
Maroti Fad is not made party in the present writ petition. The said
detail appears at page 104 of the writ petition. In absence of one
of the elected candidate also the petition cannot be entertained.
15. Considering the above conspectus of the matter, the writ
petition is dismissed however with no orders as to costs.
[ A. M. BADAR, J. ] [ S. V. GANGAPURWALA, J. ]
sam/Mar.16
