Bombay High Court
Bhagwat Manjabapu Khemnar And ... vs The State Election Commissioner ... on 2 December, 2022
Bench: Mangesh S. Patil, Y. G. Khobragade
1 WP/ 11858 /2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11858 OF 2022
1. Bhagwat S/o Manjabpu Khemnar
Age : 51 years, Occu : Agriculture,
2. Biru S/o Laxman Halnar,
Age : 60 years, Occu : Agriculture,
3. Rasul S/o Sikandar Maniyar,
Age : 42 years, Occu : Agriculture,
4. Raosaheb S/o Damodhar Kotkar,
Age : 40 years, Occu : Agriculture,
All R/o. Ambhore, Tq. Sangamner,
Dist. Ahmednagar .. Petitioners
VERSUS
1. The State Election Commissioner
The State Election Commission of Maharashtra,
New Administrative Building, 1st Floor,
Madam Cama Road, Hutatma Rajguru Chowk,
Mumbai - 400 032
2. Shri K. Suryakrushnmurti,
The Assistant Commissioner,
The State Election Commission of Maharashtra,
New Administrative Building, 1st Floor,
Madam Cama Road, Hutatma Rajguru Chowk,
Mumbai - 400 032
3. The District Collector,
Ahmednagar
4. The Sub Divisional Officer, Sangamner,
Tq. Sangamner, Dist. Ahmednagar
5. The Tahsildar, Sangamner,
Dist. Ahmednagar
6. The Sub Divisional Officer, Shirdi,
Tq. Rahata, Dist. Ahmednagar
7. Shri. Yogesh S/o Sampat Khemnar,
Age : Major, Occu : Agriculture,
R/o. Ambhore, Tq. Sangamner,
Dist. Ahmednagar .. Respondents
::: Uploaded on - 02/12/2022 ::: Downloaded on - 03/12/2022 21:01:34 :::
2 WP/ 11858 /2022
WITH
CIVIL APPLICATION NO. 15945 OF 2022 IN WP/11858/2022
(Khemnar Balasaheb Dagdu and others
Vs.
The State Election Commissioner and Others)
AND
CIVIL APPLICATION NO. 15901 OF 2022 IN WP/11858/2022
(Bhagwat Manjabapu Khemnar and others
Vs.
The State Election Commissioner and Others)
...
Advocate for petitioner in WP and applicant in CA/15901/2022 : Mr. P.B. Shirsath
Advocate for the respondents nos. 1 and 2 : Mr. A.B. Kadethankar
AGP for the respondents nos. 3 to 6 : Mr. A.R. Kale
Advocate for applicant in CA/15945/2022 : Mr. C.K. Shinde
Advocate for respondent no. 7 : Mr. Narayan B. Narwade
...
CORAM : MANGESH S. PATIL &
Y. G. KHOBRAGADE, JJ.
RESERVED ON : 29 NOVEMBER 2022
PRONOUNCED ON : 02 DECEMBER 2022
JUDGMENT (MANGESH S. PATIL, J.) :
Heard.
2. Rule. Rule is made returnable forthwith. Mr. Kadethankar
waives service for the respondents nos. 1 and 2, learned AGP waives
service for respondents nos. 3 to 6 and Mr. N.B. Narwade waives
service for respondent no. 7.
3. By way of civil application no. 15945 of 2022, some
persons have prayed for joining as co-petitioners. Learned advocate
3 WP/ 11858 /2022
for the petitioners Mr. Shirsath, on instructions, gives consent for
adding them in the array of the petitioners. Civil application no. 15945
of 2022 is accordingly allowed and the applicants therein are permitted
to be included in the array of the petitioners.
4. The petitioners are the 117 voters from the voters' list of
Ambhore Gram Panchayat, Taluka - Sangamner, District -
Ahmednagar but are aggrieved by report of the respondent no. 6 who
is the Sub Divisional Officer, Shirdi, Taluka -Rahata, District -
Ahmednagar dated 09-11-2022 submitted to the respondent no. 3 -
Collector, Ahmednagar pointing out the errors in including their names
in the constituency of Ambhore Gram Panchayat though they are
residents of Kolwade and Pimprane villages and including their names
in those constituencies.
5. Mr. Shirsath for the original petitioners and Mr. Shinde for
the newly added petitioners would submit that by virtue of section 12 of
the Maharashtra Village Panchayat Act, 1959 ("V.P. Act"), the electoral
roll of the Maharashtra Legislative Assembly prepared under the
provisions of the Representation of People Act, 1951 ("R.P. Act")" as is
in force on such date as the State Election Commissioner notifies
forms the basis for finalizing the list of voters for the elections of the
village panchayat.
4 WP/ 11858 /2022
The respondents nos. 1 and 2 - the State Election
Commission has issued the election programme on 04-10-2022 and
notified 31-05-2022 as the cut-off date in respect of the electoral rolls
published for the legislative assembly under section 21 of the R.P. Act.
They would submit that once such a notification is issued stipulating
the cut-off date, no correction in the voters' list could have been
undertaken except by following the procedure prescribed under section
22 of the R.P. Act.
They would also submit that it is only the Electoral
Registration Officer for the constituency is conferred with the powers to
undertake such correction, either on an application to be made to him
or on his own motion. They would further submit that even such an
application has to be filed in accordance with Form no. 7 stipulated
under the Registration of Electors Rules, 1960. No such application in
the prescribed form was submitted to the respondent no. 5 who is the
election officer and no opportunity of being heard was also extended to
the petitioners. The decision was not taken by the respondent no. 5
election officer who alone was competent to take a decision. Ignoring
such legislative mandate, the impugned communication has been
forwarded, thereby depriving the petitioners of their right to vote in
Ambhore village panchayat election.
5 WP/ 11858 /2022
They submit that the petitioners are not intending to
obstruct the ongoing election process but are merely interested in
casting their votes in the election of Ambhore Gram Panchayat.
They would cite following decisions:-
i) Election Commission of India through Secretary Vs. Ashok
Kumar adn others; AIR 2000 SC 2979
ii) Shri Savio O. Fernandes and another Vs. State Election
Commissioner and others; AIR 1996 BOMBAY 343
iii) Ahmednagar Zilla S.D.V. & P. Sangh Ltd. and another Vs.
State of Maharashtra and others; (2004) 1 SCC 133
iv) Pundlik Vs. State of Maharashtra and others; AIR 2005 SC
v) Ankushbhau S/o Juglal Baghele and others Vs. State of
Maharashtra and others; 2022(4) Mh.L.J. 539
6. Learned advocate Mr. Kadethankar would subscribe to the
submissions of the learned advocate for the petitioners Mr. Shirsath
and Mr. Shinde to the extent of the procedure to be followed for
correction of the electoral rolls and also does not dispute the fact that
by virtue of a notification, the State Election Commission has declared
the cut-off date as 31 May 2022 for formation of voters' list in respect of
the Gram Panchayat elections, as is stipulated under section 12 of the
V.P. Act. However, he would submit that the election process has
already begun and allowing the petition would protract the ongoing
process and this Court should not exercise the powers under Article
226 of the Constitution which would have a tendency to protract or
obstruct the process.
6 WP/ 11858 /2022
7. Learned AGP relies upon the decision in the matter of Shri
Sant Sadguru Janardan Swami (Moingirid Maharaj) Sahakari
Dugdha Utpadak Sanstha and others Vs. State of Maharashtra and
others; (2001) 8 SCC 509 and submits that even preparation of voters'
list is a part of an election process and an intermediate stage in the
process of election and this Court should not pass any order to obstruct
the ongoing election process.
8. The rival contentions now fall for our consideration.
9. There is no dispute about the fact that the electoral roll for
the legislative assembly prepared under section 21 of the R.P. Act
forms the basis of the voters' list for election of village panchayat by
virtue of section 12 of the V.P. Act. It also lays down that the date
prescribed by the State Election Commission notified by it is the cut off
date for preparation of such electoral roll. It is admitted that the
respondents nos. 1 and 2 - State Election Commission has notified the
cut-off date as 31 May 2022.
10. Any correction in such electoral roll can be undertaken
under section 22 of the R.P. Act. It enables the Electoral Registration
Officer to undertake such correction after an enquiry but pertinently
such an action can be taken by him on his own motion or subject to
such general or special direction as may be given by the Election
7 WP/ 11858 /2022
Commission after proper verification of the facts and after giving an
opportunity of being heard to the person concerned of the proposed
action. Even there is a provision to challenge such decision of the
Electoral Registration Officer taken under section 22 by way of an
appeal to the District Magistrate under section 24 of the R.P. Act.
11. We notice that in view of such specific wording of section
22, the submission of the learned advocates for the petitioners that no
such correction can be undertaken except by filing of Form no. 7 of the
Registration of the Electors Rules, 1960, cannot be accepted. The
power can also be exercised by the Electoral Officer suo motu as well
and even as per the instructions of the State Election Commission.
12. It does appear that the respondent no. 5 who is the
Election Officer had rejected the objection raised by the respondent
no. 7 by the order dated 21-10-2022. It appears that the respondent no.
7 being aggrieved by the order of respondent no. 5 - Election Officer
approached the respondents nos. 1 and 2 with his application dated
22-10-2022 requesting for undertaking a fresh scrutiny of the fact that
the petitioners were not residents of village Ambhore but were
residents of village Kolwade and Pimparne.
The respondent no. 2 - Assistant Commissioner by his
communication dated 27-10-2022 directed the respondent no. 3 -
Collector to get the respondent no. 7's objection to be enquired into
8 WP/ 11858 /2022
through the respondent no. 6 who is the Sub Divisional Officer, Shirdi
and calling upon the respondent no. 3 - Collector to submit a report. It
is pursuant to such a direction by the respondents nos. 1 and 2 that the
respondent no. 6 has undertaken the exercise and by the impugned
report communicated the respondent no. 3 - Collector as to how the
petitioners were not residents of Ambhore but were residents of village
Kolwade and Pimparne and recommending deletion their names from
the electoral rolls of village Ambhore and including their names in the
rolls of other two villages as enlisted in the report.
Pertinently, the respondent no. 6, in his report had
specifically indicated that he had not only heard the learned advocate
for the respondent no. 7 but even the arguments of the learned
advocate for the petitioners were also heard and by a speaking order,
he had opined that necessary correction needed to be made in the
voters' list of all the three villages.
13. It is important to note at the cost of repetition that by virtue
of section 22 of the R.P. Act, an exercise of correction can be
undertaken even at the instance of the State Election Commission.
Section 22 reads as under:-
"22. Correction of entries in electoral rolls.--If the electoral
registration officer for a constituency, on application made to
him or on his own motion, is satisfied after such inquiry as he
thinks fit, that any entry in the electoral roll of the constituency--
(a) is erroneous or defective in any particular,
9 WP/ 11858 /2022
(b) should be transposed to another place in the roll on
the ground that the person concerned has changed his place of
ordinary residence within the constituency, or
(c) should be deleted on the ground that the person
concerned is dead or has ceased to be ordinarily resident in the
constituency or is otherwise not entitled to be registered in that
roll, the electoral registration officer shall, subject to such
general or special direction, if any, as may be given by the
Election Commission in this behalf, amend, transpose or delete
the entry after proper verification of facts in such manner as
may be prescribed:
Provided that before taking any action on any ground
under clause (a) or clause (b) or any action under clause (c) on
the ground that the person concerned has ceased to be
ordinarily resident in the constituency or that he is otherwise not
entitled to be registered in the electoral roll of that constituency,
the electoral registration officer shall give the person concerned
a reasonable opportunity of being heard in respect of the action
proposed to be taken in relation to him after proper verification
of facts in such manner as may be prescribed."
14. If this is the state of affairs, when the respondent no. 6, on
the instructions of the respondents nos. 1 and 2 - State Election
Commissioner, has undertaken an enquiry, that too by extending an
opportunity of being heard to the petitioners and the respondent no. 7
and by a speaking order has suggested modification in the electoral
rolls, it cannot be said that the report is without any power or
jurisdiction and is contrary to the scheme of section 22 of the R.P. Act.
15. Apart from the above state-of-affairs, though strictly
speaking the facts in this matter and in the matter before the Full
Bench of this Court in the case of Karmaveer Tulshiram Autade and
others Vs. State Election Commission and others; 2021 AIR
(Bom.) 90 are different, the principle laid down therein would be
10 WP/ 11858 /2022
squarely applicable to the fact situation of the matter in hand. After
going through several decisions of the Supreme Court, it has been held
that a petition under Article 226 of the Constitution would not be
maintainable if it calls in question a step in the process of election
which would have the effect of interrupting, obstructing or protracting
the election. Though it was a matter of rejection of nomination form by
the Returning Officer, the principle laid down therein would certainly
bind this Court.
16. The learned advocates for the petitioners would
vehemently submit that though the election process in the matter in
hand has already commenced, the objections being raised by the
petitioners regarding legality of the voters' list would not be a ground to
challenge the election since it is not covered by section 15 of the V.P.
Act. However, the Full Bench has even considered a similar argument
in paragraph no. 64 in following words:-
"64. Having noticed the decision in Bharati Reddy (supra), we
consider it appropriate to examine whether section 15 of the
MVP Act provides a remedy to an aggrieved voter or any
candidate who wishes to call in question the validity of any
election of a member of a Panchayat; further, whether
illegal/improper rejection of nomination paper of an individual
seeking to contest an election could form a valid ground for
invalidating the election of the successful candidate. Sub-
sections (1) and (2) of section 15 of the MVP Act, in our view,
provides complete answers to the aforesaid questions. Under
sub-section (1),validity of any election of a member could be
brought in question by any candidate at such election or by any
person qualified to vote for any election in the manner and
before the authority (Judge) as ordained. Sub-section (2)
provides the procedure to be followed by the Judge upon
receiving an election petition and the extent of relief that could
11 WP/ 11858 /2022
be granted by him. The Judge is vested with the power to
conduct inquiry and to pass necessary order confirming or
amending the declared result, or setting the election aside. The
submission of Mr. Deshmukh, relying on sub-section (5), that the
Judge has the power to interfere only if a corrupt practice has
been committed by the successful candidate within the meaning
of sub-section (6) does not appear to us to be sound. Though
sub-section (5) refers to a particular contingency which could
invalidate an election, sub-sections (1) and (2) are not controlled
by sub-section (5). Sub-section (1) and (2), read together, are of
wide import and would take within its fold a grievance raised
against illegal/improper rejection of nomination paper. We,
thus, conclude that the MVP Act, a complete code in itself in
relation to Panchayati Raj in Maharashtra, does provide the
necessary machinery for vindication of ubi jus ibi remedium and
for appropriate redressal of grievance of any disgruntled
individual who perceives that he has been wronged by the
Returning Officer. The decision in Bharati Reddy (supra) is,
therefore, distinguishable on facts."
17. In view of such interpretation put on section 15 of the V.P.
Act, the submission of the learned advocates for the petitioners are not
maintainable. For all these reasons, when the election process has
already begun, we refrain from exercising the powers under Article 226
of the Constitution of India.
18. The petition is dismissed.
19. However, it would be open for the petitioners to re-agitate
the issue post the election.
20. Pending civil application no. 15901 of 2022 is disposed of.
[ Y.G. KHOBGRAGADE ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
