Milind Maryappa Mule And Anr vs Talathi,Village Hotagi Station, ...
2021 Latest Caselaw 614 Bom

Kanchan
P. Dhuri
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Kanchan P. Dhuri
Date: 2021.02.02
20:55:50 +0530
                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                 CIVIL APPELLATE JURISDICTION
                                                  WRIT PETITION NO. 3674 OF 2020
                      Milind Maryappa Mule and another                                     ...       Petitioners
                               Versus
                      Talathi, Village Hotagi Station,
                      Tal. South Solapur, Dist. Solapur and others                         ...       Respondents

                      Mr. A.B. Tajane for the Petitioner.
                      Ms. M.P. Thakur, AGP for the State.
                      Mr. S.B. Shetye alongwith Mr. Irfan Shaikh, Ms. Sarika Shetye for State Election
                      Commission.
                      Mr. A.I. Patel, Addl. GP alongwith Ms. K.N. Solunke, AGP for the State.

                                                              CORAM : S.J. KATHAWALLA, &
                                                                             VINAY JOSHI, JJ.

                                                              DATE      : 12th JANUARY, 2021.
                      P.C. :

1. By the above Writ Petition, Petitioner No. 1 - Milind Maryappa Mule

and Petitioner No. 2 - Nisar Ahamad Karimsab Kamble seek to challenge the fnal

voters list published on 14th December, 2020, by the District Collector, Solapur in

respect of village Hotagi Station, Taluka - South Solapur, whose Gram Panchyat

election is scheduled in the three days from today i.e. on 15 th January, 2021.

2. The reliefs sought in the above Writ Petition are as follows :

"(a) Rule be issued and record and proceedings of the case be called for and after examining, the legality, validity and propriety of the case, the order of rejection of objections of Petitioner Nos. 1 and 2 by the Respondent Authority dated 14th December, 2020 being Exhibits-J and Nitin 2 / 6 13-WP-3674-2020.doc

K to the present Writ Petition as well as the fnal voters list published on 14th December, 2020 by the learned District Collector, Soalpaur being Exhibits-M, N, O and P to the present Writ Petition be partly quashed and set aside so far as not considering the objections of the Petitioner Nos.

1 and 2 dated 7th December, 2020 being Exhibits-G and H to the present Writ Petition.

(b) The learned District Collector, Solapur be directed to correct the voters list of Prabhag 1 to 4 of village Hotagi Station, Taluka - South Solapur, District - Solapur, correct the Prabhag considering the migrated, dead and the change of voters as per their actual residence of village Hotagi Station, Taluka - South Solapur, District - Solapur as per the objection dated 7th December, 2020 of Petitioner Nos. 1 and 2 dated 7th December, 2020 being Exhibits-G and H to the present Writ Petition."

3. The facts which are relevant for deciding the reliefs sought in the above

Writ Petition, are in brief set out hereunder :

3.1. On 20th November, 2020 the State Election Commission published the

election programme.

3.2 The draft voters list in respect of the Prabhags of Village Hotgi Station

was published on 1st December, 2020. Objections were called for between 1 st

December, 2020 to 7th December, 2020.

3.3 On 5th December, 2020, the draft voters list was also published in the

newspapers and objections were called for.

3.4           On 7th December, 2020, the Petitioner Nos.1 and 2 fled their objections
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to the voters list. The said objections are annexed and marked Exhibits 'G' and 'H' to

the above Writ Petition.

3.5 On 11th December, 2020, the election programme was declared.

3.6 On 14th December, 2020 the Respondent No.8 partly allowed the

objections of the Petitioner Nos.1 and 2 and certain objections were rejected.

3.7 It is submitted that the names of the several voters are wrongly included

in the Prabhags and therefore, the formation of Prabhags/Wards is wrong.

3.8 On 14th December, 2020, the Booth Level Ofcer (BLO) submitted a list

of the migrated and absentee voters to the Tahsildar.

3.9 On 14th December, 2020, the fnal voters list was published by the State

Election Commission.

3.10 Being aggrieved by the fnal voters list, the Petitioners have fled the

above Writ Petition on 22nd December, 2020.

4. Clause 1 of Article 243K of the Constitution of India pertains to Election

to the Panchayats and provides that, "the superintendence, direction and control of

the preparation of electoral rolls for, and the conduct of, all elections to the

Panchayats shall be vested in a State Election Commissioner consisting of a State

Election Commissioner to be appointed by the Governor." (emphasis supplied)

5. Article 243-O bars interference by courts in electoral matters. The same

is reproduced hereunder :

"Article 243-O - Bar to interference by courts in electoral matters. -

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Notwithstanding anything in this Constitution -

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243K, shall not be called in question in any court;

(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."

(emphasis supplied)

7. The Apex Court in the case of Anugrah Narain Singh & Anr. V. State

of U.P. & Ors.1 whilst dealing with the challenge to reservation of seats in favour of

Scheduled Castes, Scheduled Tribes and Backward Classes in the municipal election

has inter alia held that if holding of elections is allowed to be stalled on the complaint

of a few individuals, then grave injustice will be done to crores of other voters who

have a right to elect their representative to the local bodies. The relevant clauses of

the Judgment are reproduced hereunder :

"14........Importance of holding elections at regular intervals for panchayats, municipal bodies or legislatures cannot be overemphasised. If holding of elections is allowed to be stalled on the complaint of a few individuals, then grave injustice will be done to crores of other voters who have right to elect their representatives to the local bodies. As a result of the order of the High Court, elections that were going to be held to the local

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bodies after a long lapse of nearly ten years were postponed indefnitely. It was pointed out by this Court in the case of Lakshmi Charan Sen V. A.K.M. Hassan Uzzaman 2, that : (SCC p. 703, para 21) "the fact that certain claims and objections are not fnally disposed of, even assuming that they are fled in accordance with law, cannot arrest the process of election to the legislature. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations".

15. The Court also quoted from its order dated 30-3-1982 that :

(SCC pp. 219-20, para 1) "no High Court in the exercise of its powers under Article 226 of the Constitution should pass any orders, interim or otherwise, which has the tendency or efect of postponing an election, which is reasonably imminent and in relation to which its writ jurisdiction is invoked. The imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Court's writ jurisdiction. The more imminent such process, the greater ought to be the reluctance of the High Court to do anything, or direct anything to be done, which will postpone that process indefnitely by creating a situation in which, the Government of a State cannot be carried on in accordance with the provisions of the Constitution. ....................The High Courts must observe a self imposed limitations on their power to act under Article 226, by refusing to pass orders or give directions which will inevitably result in an indefnite postponement of elections to legislative

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bodies, which are the very essence of the democratic foundation and functioning of our Constitution."

16. In this case, the High Court has ignored the fact that the electoral process was well under way and was scheduled to be completed in less than ten days' time. The High Court also failed to observe the self-imposed limitation as enjoined by this Court in the case of Laxmi Charan Sen."

In the instant case, admittedly on 1st December, 2020, draft voters list was published

by the State Election Commission and the objections were invited. The Petitioners

have submitted their objections with the Sub Divisional Ofcer (SDO) on 7th

December, 2020. The SDO after considering the objections has partly allowed the

objections of the Petitioners and has rejected certain objections. On 14 th December,

2020, the fnal voters list was published by the State Election Commission. In view of

Article- 243O of the Constitution of India, the question of stalling the election which

are scheduled to be held on 15 th January, 2021 does not arise. However, it is clarifed

that the Petitioners can always pursue their remedy under Section 15 of the

Maharashtra Village Panchayats Act, 1959. However, if the said remedy is pursued, it

will be open for the parties to raise all their contentions. The above Writ Petition is

accordingly dismissed.

(VINAY JOSHI , J. )                                      ( S.J. KATHAWALLA, J. )