Vilas Vitthal Sakhare And Ors vs State Of Maharashtra Through ...
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Swaroop
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S.
Phadke
                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION
Digitally signed
by Swaroop S.
Phadke

                                    WRIT PETITION (ST) NO.98240 OF 2020
Date:
2021.01.16
18:11:41
+0530




                   1.Vilas Vitthal Sakhare,
                   Age : 42 years, Residing at House No. 134/1
                   Survey No. 146/1, Hinjawadi Wakad Road,
                   Taluka Mulshi, District - Pune.
                   2.Amol Vitthal Sakhare,
                   Age : 38 years, Residing at House No. 134/2,
                   Survey No. 146/1 at Hinjawadi Wakad Road,
                   Hinjawadi, Taluka - Mulshi, District - Pune.
                   3. Babasaheb Chandrakant Sakhare,
                   Age : 37 years, R/o. Shivaji Chowk, Behind Zila
                   Parishad School, Hinjewadi Infor Tech Park,
                   Hinjawadi, Taluka Mulshi, District - Pune.
                   4.Sachin Pandurang Kakade,
                   Age : 38 years, Residing Hinjewadi, Taluka - Mulshi,
                   District - Pune.                                               ...Petitioners


                                        Versus
                   1.     State of Maharashtra through secretary
                   Rural Development Department, Mantralaya,
                   Mumbai.
                   2.     State Election Commission,
                   having its ofce at New Administrative Building,
                   Hutatma Rajguru Marg, Madam Cama Road,
                   3.     Collector, Pune.
                   SSP
                   1/10
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4.     SDO, Taluka Mulshi, Dist. Pune.
5.     Tehsildar, Tal. Mulshi, Dist. Pune,
6.     Hinjawadi Grampanchayat,
Hinjawadi, Pune, Maharashtra 411 057.                             ...      Respondents


Mrs. Neeta P. Karnik, for Petitioners.
Ms. Rupali Shinde, AGP, for State.
Mr. S.B.Shetye with Mr. Ifran Sheikh, Ms. Sarika Shetye, for State Election
Commission.
Mr. Hemant Naikwadi, Circle Ofcer, Hinjawadi, Tal. Mulshi, Pune, present.

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

DATE: 13th JANUARY, 2021

ORAL JUDGMENT (PER S.J. KATHAWALLA, J.)

1. By the above Writ Petition, the Petitioners seek to challenge the fnal voters

list prepared for the purpose of Hinjawadi Grampanchayat Election which is

scheduled to be held on 15th January, 2021.

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

"This Hon'ble Court may be pleased to invoke its writ jurisdiction under Article 226 of the Constitution of India and issue a writ of mandamus or a writ, direction or order in the nature of mandamus and

(a) Direct the Respondents to correct the draft voter's list and/or to prepare a corrected fnal voter's list for the Respondent No.6's general election;

(b) Direct the Respondents to ensure that residents from outside the SSP

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Respondent No.6 are not added to the voter's list as also voters from the Gram Panchayat be shown in their rightful wards;

(c) Direct the Respondents to delete the voters shown from Sr. No.1 to Sr. Nos.342 of the voter's list of Ward No.5 and include same in Ward No.3;

(d) Direct the Respondents to delete the names shown from Serial Nos.343 to 534 in voter's list of Ward No.5 and same be included in Ward No.4;

(e) Direct the Respondents to remove the names added from outside gram panchayat area as enumerated at Exhibit O herein;"

3. The facts which are relevant for deciding the above Writ Petition are in brief

set out hereunder :

3.1 On 20th November, 2020 the Election Commission declared the

programme concerning the fnaliiation of the draft voter's list.

3.2 By another circular of the same date, further directions were given as to how

the draft voter's list was to be fnaliied.

3.3 As per the directions of the Election Commission, the voters list utiliied for

the last State Assembly Elections for Maharashtra as updated upto 25th September,

2020, was to be considered for the preparation draft voter's list of the Respondent

No.6.

3.4 In exercise of the powers under Section 12 of the Maharashtra Village

Panchayats Act, 1959, the State Election Commission has adopted the electoral roll SSP

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prepared for the assembly elections by the Election Commission of India under the

Representation of People's Act and 25th September, 2020 was fxed as the cut of date.

The said electoral roll was divided into the wards of villages and the draft voter's list

was prepared.

3.5 According to the Petitioners, they noticed several irregularities in the State

Assembly Election Voter's list itself.

3.6 On 3rd December, 2020 the Petitioner No.1 fled his objections with the

Respondent No.5 i.e. the Tahsildar, Tal. Mulshi, Pune.

3.7 The Petitioner No.2 also fled his objections on 7th December, 2020,

pointing out how certain names should not be included in a particular ward, but

should be included in another ward and the names incorrectly included in a particular

Ward should be removed.

3.8 The alleged irregularities were once again pointed out by the Petitioner No.

1 vide his Letter addressed to the Tahsildar dated 10th December, 2020.

3.9 Since no response was received, the Petitioners fled the above Writ Petition

on 12th December, 2020 seeking reliefs as set out in paragraph 2 above.

3.10 The fnal voter's list was published on 14th December, 2020.

4. The Learned Advocate appearing for the State Election Commission on

instructions from Mr. Hemant Naikwadi, Circle Ofcer, Hinjawadi, Tal. Mulshi, who

is present in Court, states that the objections raised by the Petitioners have been

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considered by the Sub-Divisional Ofcer and it is only thereafter, that the fnal list of

voters has been published. In other words, the SDO did not fnd any substance in the

objections of the Petitioners, and rejected the same. The Learned Advocate for the

State Election Commission relying on a Notifcation dated 20 th November, 2020,

issued by the State Election Commission, particularly Clause 3(c) thereof, submitted

that the State Election Commission is not empowered to delete/add any names on the

ground of absenteeism, shifting, death of individual/s residing in a particular

area/ward and the same has to be done by the Election Commission of India.

5. The Learned Advocate for the State Election Commission further submits

that in the event of any person/s being aggrieved by the electoral roll prepared by the

Election Commission of India for the purpose of elections to the State Legislature or

Parliament, have to seek redressal of their grievance/s by following the procedure laid

down under the Registration of Electors Rules, 1960 framed under the Representation

of People Act, 1950 (43 of 1950). The said Rules sets out the procedure for lodging

claims, objections and the procedure to be followed for dealing with such claims and

objections, interalia pertaining to inclusion of names inadvertently omitted from the

electoral roll and deletion of names from the roll. Rule 22 deals with the fnal

publication of electoral roll and Rule 23 provides for Appeals from Orders deciding

claims and objections. The Learned Advocate for the State Election Commission has

further submitted that an aggrieved person can also avail the required reliefs by

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following the procedure prescribed in Section 15 of the Maharashtra Village

Panchayats Act, 1959.

6. We accept the statement made by Mr. Hemant Naikwadi, Circle Ofcer,

Hinjawadi, Tal. Mulshi, Pune, that they have considered the objections of the

Petitioners and have thereafter proceeded with the fnal publication of the voters list

on 14th December, 2020.

7. We also need to point out that Clause 1 of Article 243K of the Constitution

of India pertains to Elections 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."

8. 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 eicept 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."

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9. The Supreme Court in the case of Anugrah Narain Singh V/s. State of

U.P.1, interalia observed the importance of holding elections at regular intervals for

panchayats, municipal bodies or legislatures and have proceeded to hold that no High

Court under Article 226 of the Constitution of India 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

relevant paragraphs of the said Judgment are reproduced hereunder :

"14. There are several reasons why these arguments of the writ petitioners should not have been upheld. The High Court overlooked the fact that no municipal election had been held in the State for nearly ten years and the dates of the elections were fxed under the direction given by the High Court in another case. 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 indefnitely. It was pointed out by this Court in the case of Lakshmi Charan Sen V. A.K.M. Hassan Uzzaman2, 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

1 (1996) 6 SCC 303 2 (1985) 4 SCC 689 SSP

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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 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."

17. In Lakshmi Charan Sen case, this Court was dealing with Part SSP

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XV of the Constitution which deals with preparation of electoral rolls for, and the conduct of, all elections to Parliament, and to the Legislatures of diferent States and all elections to the ofces of the President and the Vice-President. We are in this case, concerned with the elections to municipal bodies. But the principles laid down in Lakshmi Charan Sen case will apply in full force to municipal elections because various articles dealing with holding of municipal elections in Part IX-A of the Constitution are similarly worded. In fact, highest importance has been attached to holding of panchayat as well as municipal elections by the Constitution. Parts IX and IX-A of the Constitution were introduced by the Constitution (73 rd Amendment) Act, 1992 and (74th Amendment) Act, 1992. By these two Parts, it was intended to take democracy to the grass-root level. Part IX deals with constitution of panchayats, composition of panchayats and holding of regular elections to the panchayats. Article 243-O contains a bar to interference by Court in electoral matters. This bar is similar to the bar contained in Article 329 of the Constitution in Part XV, the implication of which was explained by this Court in the case of Lakshmi Charan Sen.

10. We accept the statement made by the Learned Advocate for the State

Election Commission on instructions from Shri Hemant Naikwadi, Circle Ofcer,

Hinjawadi, Tal. Mulshi, Pune, that they have considered the objections raised by the

Petitioners. Admittedly the election process has reached an advanced stage, EVMs

are already set up and the voting is scheduled to be held on 15 th January, 2021 and SSP

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therefore, at this stage, it would not be desirable to stall the election process. There are

several decisions of the Hon'ble Supreme Court advising the High Courts not to stall

the election process by utiliiing their powers under Article 226 of the Constitution of

India. Even otherwise, alternate remedies are available to the Petitioners under Rule

23 of the Registration of Electors Rules, 1960 and also under Section 15 of the

Maharashtra Village Panchayats Act, 1959. We are therefore not inclined to grant any

reliefs as sought in the above Writ Petition. However, it is clarifed that the Petitioners

are always at liberty to pursue the alternate remedies available to them in law, and if

the same is/are 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. )




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