Bombay High Court
Ajit Anant Desai And Anr vs The State Of Maharashtra And Ors on 29 April, 2021
Bench: R.D. Dhanuka, Virendrasingh Gyansingh Bisht
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1188 OF 2021
1. Ajit Anant Desai
Age: 58, Occu : Agriculturist,
R/o. At Post Kale,
Tal. Karad, Dist. Satara
2. Sambhaji Bhagwan Damame
Age: 47, Occu : Agriculturist,
R/o. At Post Bahe,
Tal. Walwa, Dist. Sangli ... Petitioners
Versus
1. The State of Maharashtra
Through Ministry of Cooperation, Textiles
& Marketing, Mantralaya, Mumbai.
2. The State Election Cooperative
Authority, Maharashtra State, Pune
Old Central Building, Ground Floor,
Pune - 3.
3. The District Cooperative Election Officer,
Also Regional Joint Director
(Sugar), Pune Division, Pune.
4. Yashwantrao Mohite Krishna Sahakari
Sakhar Karkhana Ltd.,
Having office at Rethere Budruk,
Tal. Karad, Dist. Satara
Through its Managing Director ... Respondents
******
Mr. Surel S. Shah for the Petitioners.
Mr. Yuvraj D. Patil, AGP for the Respondent No.1.
Mr. Deelip Patil Bankar, CSC for the Respondent Nos. 2 and 3-SCEA.
::: Uploaded on - 29/04/2021 ::: Downloaded on - 09/09/2021 07:24:17 :::
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Mr. A. V. Anturkar, Senior Advocate i/by Mr. Tanaji Mhatugade a/w
Mr.Ajinkya Udane for the Respondent No.4.
******
CORAM: R. D. DHANUKA AND
V. G. BISHT, JJ.
DATE : 29th APRIL, 2021.
(Through Video Conference)
ORAL JUDGMENT (R. D. Dhanuka, J.) :-
. By this petition filed under Article 226 of the Constitution of
India, the petitioners who claim to be members of the respondent no.4-
society have prayed for a writ of mandamus directing the respondent
nos. 2 and 3 to postpone and or extend the date of raising objections to
the provisional voters list as provided for in the notification dated 9 th
April, 2021 to a suitable date and direction to the respondents to not
proceed with finalization of voters list pursuant to the notification
dated 9th April, 2021.
2. Mr. Shah, learned Counsel for the petitioners invited our
attention to the order dated 10th February, 2021 passed by this Court in
Writ Petition No. 489 of 2021 in case of Ajit Anant Desai v/s. State of
Maharashtra and Ors. and would submit that pursuant to the said
order passed by this Court directing the Election Authority to proceed
with the election process expeditiously, the Election Authority has
issued a Notice on 9th April, 2021. He submits that the objections to
the provisional voters list were to be raised by the concerned parties
during the period between 12th April, 2021 and 22nd April, 2021.
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3. Learned Counsel invited our attention to the order passed by the
Government of Maharashtra on 21st April, 2021 thereby imposing
lockdown in the State of Maharashtra till 1st May, 2021 upto 7:00 a.m.
and would submit that in view of the stringent conditions imposed by
the State of Maharashtra in the said order dated 21 st April, 2021 it was
not possible for the petitioners to collect documents to enable the
petitioners to raise objections in respect of the provisional voters list.
4. It is submitted by the learned Counsel that that in some of the
cases the voters who are though alive have been shown as dead and
some of the voters who have though died, their names continue in the
provisional voters list.
5. It is submitted by the learned Counsel that since the election is
already postponed, no prejudice would be caused to the respondent
no.1 if the date of finalization of the provisional voters list, which is
fixed as 6th May, 2021 is extended to enable the petitioners to collect
the documents and to raise the objections in respect of the provisional
voters list.
6. Learned Counsel for the respondent nos. 2 and 3, Election
Authority on the other hand opposes this petition on the ground that
pursuant to the said notice dated 9th April, 2021 inviting objections in
respect of the provisional voters list, 150 persons have submitted
objections by filing hard copies and 8 objections were received by
email. 20 Applications were received from the persons alleging that
their names were shown as dead though are alive. Learned Counsel
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states that the last date for inviting the objections was 22 nd April, 2021.
After 22nd April, 2021, the concerned officer has already heard those
objections on 27th April, 2021. After considering all those objections,
list would be finalized on 6th May, 2021. It is submitted that no details
are furnished in the Writ Petition filed by the petitioner as to which
voters are alive who are shown as dead or which voters are already
dead though ample opportunity was available to all the objectors
during the period between 12th April, 2021 and 22nd April, 2021 even by
raising objections by email.
7. It is submitted by the learned Counsel for respondent nos. 2 and
3 that even if the petitioners or the other voters would not have raised
any objection, under Rule 40 of the Maharashtra Co-operative
Societies (Election to Committee) Rules, 2014 (for short 'the said Rule
2014') each voter entering the polling station is required to carry out
with him photo identity proof as prescribed by the Election
Commission of India, Central and State Government or photo identity
card issued by society as per provisions in bye-laws of that society.
The presiding officer may employ at the polling station such persons as
he thinks fit to help in the identification of the voters or to assist him at
the time of taking poll. Learned counsel also placed reliance on Rule
41, 42 and 48 of the said Rules 2014 and would submit that all the
apprehensions of the petitioners that somebody would impersonate the
dead voters as well as the persons who are shown dead but are alive are
baseless and contrary to the said Rules 2014. He submits that those
voters who had raised objection in respect of the provisional voters list,
their objections are being considered.
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8. Mr. Anturkar, learned Senior Counsel for the respondent no.4
vehemently opposes this petition on the ground that this Court has
already directed the Election Authority to conduct and proceed with the
election proceeds expeditiously as per order dated 10 th February, 2021.
He submits that after considering various SOPs issued by the State of
Maharashtra and similar submissions in Writ Petition No. 1119 of 2021
filed by Makarand Balkrushna Borade v/s. State of Maharashtra and
Ors. and in companion matters this Court rejected those arguments by
considering the statement made by the State Government that they
would follow the safeguards provided in various notifications/SOPs
issued by the State of Maharashtra in respect of covid-19. We are
informed by the learned Senior Counsel that the Special Leave Petition
filed against the said order dated 9th April, 2021 passed by this Bench
has been dismissed.
9. Learned Senior Counsel for the respondent no.4 submits that
there are provisions pointed out by the learned Counsel for the
respondent nos. 2 and 3 providing sufficient safeguard which take care
of the grievances made by the appellant in this case.
10. Mr. Shah, learned Counsel for the petitioners in rejoinder
submits that this petition shall be considered as a representation by the
respondent. No prejudice would be caused if an opportunity is granted
to the petitioners to lodge objection. He further submits that in the
election programme issued by the Election Authority on 9th April, 2021,
there is no date prescribed for hearing objection by the Election
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Authority. After prescribing the last date for lodging objection i.e.
between 12th April, 2021 and 22nd April, 2021, the next step prescribed
in the said programme is to decide the objection on 3rd May, 2021.
11. We are not inclined to accept the submission of Mr. Shah,
learned Counsel for the petitioners that the petitioners are prevented
from raising any objection within the reasonable period of time in
respect of the provisional voters list and that no prejudice would be
caused, if the date of finalizing the provisional voters list is postponed.
12. A perusal of the notification dated 9th April, 2021 issued by the
Election Authority clearly indicates that the objections were to be
raised in respect of the provisional voters list during period between
12th April, 2021 and 22nd April, 2021. The said notification also
indicates that the objection could be raised even by email at the email
id prescribed in the said notification. The order dated 21 st April, 2021
extending the lockdown upto 1st May, 2021 did not affect the
petitioners from raising objection by email within the time prescribed.
We are inclined to accept the statement made by the learned Counsel
for the respondent nos. 2 and 3 that during the period between 12 th
April, 2021 and 22nd April, 2021 about 150 objections were filed with
the office of the Election Authority by various persons. 8 Persons have
raised objections by email and 20 Applications were received raising
objections that they were allegedly shown as dead though were alive.
All these objections which were received within the period prescribed
in the said notification are being considered by the Election Authority.
There is no substance in the submission of Mr. Shah, learned Counsel
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for the petitioners that no date was prescribed for granting any hearing
between 22nd April, 2021 and 3rd May, 2021. The date 3rd May, 2021
prescribed in the said notification was for deciding the objection.
Granting hearing is one of the part of the said process between the last
date of filing objection and the date of considering objection.
13. The learned Counsel for the respondent nos. 2 and 3 clarified
that as per the said notification the final voters list would be declared
on 6th May, 2021.
14. This Court has already considered similar arguments in the order
dated 9th April, 2021 in case of Makarand Balkrushna Borade (supra)
in Writ Petition No. 1119 of 2021 and has dismissed the batch of
petitions. Special Leave Petition filed against the said order passed by
this Court is dismissed. The process of finalization of the provisional
voters list is part of the election programme which is already declared.
15. Be that as it may, Under Rule 40 of the said Rules 2014, the
presiding officer is empowered to employ at the polling station such
persons as he thinks fit to help in the identification of the voters or to
assist him at the time of taking poll. Each of such voters is required to
enter the polling station with his photo identity proof as prescribed by
the Election Commission of India, Central or State Government or
Photo Identity Card issued by society as per provisions in bye-laws of
that society. The polling agent is entitled to challenge the identity of a
person claiming to be a particular voter by depositing a sum of Rs.50 in
cash with the presiding officer for each such challenge under Rule 41.
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The presiding officer is empowered to hold the summary inquiry into
the allegations and may for that purpose require the challenger to
adduce evidence in proof of the challenge and the person challenged to
adduce evidence in proof of his identity and put to the person
challenged any question necessary for the purpose of establishing his
identity and require him to answer them on oath. The presiding officer
is empowered to debar the person from casting the vote, if the
presiding officer is satisfied that the challenge has been established.
He can forfeit the amount of deposit made by the polling agent, if it is
found that such objection is frivolous or has not been made in good
faith.
16. In view of the aforesaid provisions, in our view the apprehension
of Mr. Shah, learned Counsel for the petitioners that somebody would
impersonate the dead members is taken care of by the legislature under
those Rules. The petitioners have not even bothered to give any details
of such dead voters who according to the petitioners may be
impersonated by someone on the date of election. In our view, the
petition is totally devoid of its merits and is accordingly dismissed with
cost. The petitioners are directed to pay cost of Rs.25,000 in one set to
the Maharashtra Legal Service Authority within one week from today
and shall produce the receipt evidencing the proof of payment of such
cost to the Sheristedar of this Court within one week thereafter.
[V. G. BISHT, J.] [R. D. DHANUKA, J.]
