Bombay High Court
Mahesh Prakash Otari And Anr vs Talathi Village Kola And Ors on 12 January, 2021
Bench: S.J. Kathawalla, V. G. Joshi
Digitally signed
Swaroop by Swaroop S.
Phadke
S. Date:
Phadke 2021.02.01
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3 OF 2021
Mahesh Prakash Otari & Anr. ... Petitioners
Versus
Talathi, Village Kola,
Taluka Sangola, District - Solapur & Ors. ... Respondents
Mr.A.B.Tajane for the Petitioner.
Ms.M.P.Thakur, AGP for the State.
Mr.S.B.Shetye a/w. Mr. Irfan Shaikh, Ms.Sarika Shetye for State Election
Commission.
Mr.A.I. Patel, Addl. G.P. a/w. 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 - Mahesh Prakash Otari
and Petitioner No. 2 - Karan Sanjay Sargar seek to challenge the final voters list
published on 14th December, 2020, by the District Collector, Solapur in respect of
village Kola, Taluka - Sangola, District - Solapur, whose Gram Panchyat election
scheduled to be held on 15th 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
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and after examining, the legality, validity and propriety of the final
voters list published on 14th December, 2020 by the learned District
Collector, Soalpaur being Exhibit-G to the present Writ Petition be
quashed and set aside so far as the objection in respect of the objection
of Petitioner Nos. 1 and 2 regarding correction of names of voters as
per their actual residence.
(b) The learned District Collector, Solapur be directed to correct the
voters list of Prabhag 4 as per the objection of the Petitioners dated 7 th
December, 2020 by spot inspection (sthal pahani) excluding the
corrections which is already."
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 1st December, 2020, the draft voters list was published by the State
Election Commission and the objections were invited.
3.2. On 7th December, 2020, the Petitioners have submitted their objections
with the Sub Divisional Officer (SDO).
3.3. On 14th December, 2020, the Circle Officer, Kola submitted a report to
the Tahsildar, Sangola stating that the objections of the Petitioners were rejected.
3.4. On 14th December, 2020, the final voters list was published by the State
Election Commission.
3.5. Being aggrieved by the final voters list, the Petitioners have filed the
above Writ Petition on 17th December, 2020.
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4. The Petitioners have in the above Writ Petition raised several objections,
most of which have been dealt with by Circle Officer in his report dated 14 th
December, 2020. The main objection of the Petitioners is that the final voters list was
prepared without verifying the physical residence of the voters and certain persons
residing in a particular locality have been shown in another ward / locality. As stated
above, these objections have been dealt with by the Circle Officer in his report dated
14th December, 2020.
5. 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."
6. 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. - 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
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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
bodies after a long lapse of nearly ten years were postponed
indefinitely. 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 finally
disposed of, even assuming that they are filed in accordance with
law, cannot arrest the process of election to the legislature. The
1 (1996) 6 Supreme Court Cases 303
2(1985) 4 SCC 689
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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 effect 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 indefinitely 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 indefinite postponement of elections to legislative
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."
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8. In the instant case, the Petitioners were given an opportunity to file their
objections to the voters list, which they have filed. The Circle Officer has considered
the objections and sent his detailed report to the Tahasildar, Sangola dealing with the
objections of the Petitioners. 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 clarified 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. )
