Bombay High Court
Sandip S/O Sahebrao Tekade And ... vs The Collector, Akola And Others on 2 May, 2023
Bench: A.S. Chandurkar, M. W. Chandwani
WP 252-2023 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 252 OF 2023
1. Sandip s/o Sahebrao Tekade,
aged about 40 years, Occ. Member of Gram Panchayat,
R/o at post Morgaon Sadijan,
Tah. Balapur, District - Akola.
2. Radha Vasanta Solanke,
aged about 38 years, Occ. Sarpanch of Gram Panchayat,
R/o at post Morgaon Sadijan,
Tah. Balapur, District - Akola.
PETITIONERS
.....VERSUS.....
1. The Collector, Akola.
2. The Returning Officer/ Extension Officer,
Balapur Panchayat Samitee, Balapur,
District - Akola for the Election of
Upa-Sarpanch, Village Morgaon Sadijan,
Tah. Balapur, District - Akola.
3. The State Election Commission,
Maharashtra State, Mumbai through its Commissioner.
4. Yogesh s/o Pralhad Band,
aged about Major, Occ. Upa-Sarpanch of Gram Panchayat,
R/o at post Morgaon Sadijan, Tah. Balapur, District - Akola.
RESPONDENTS
Shri A.J. Gilda h/f Shri N.B. Kalwaghe, Advocate for the petitioners.
Ms N.P. Mehta, Assistant Government Pleader for respondent No.1/ State.
Shri J.B. Kasat, Advocate for respondent Nos.3.
CORAM : A. S. CHANDURKAR AND M.W. CHANDWANI, JJ.
DATE : 2/5/2023
ORAL JUDGMENT (PER : A.S. CHANDURKAR, J.)
RULE. Rule made returnable forthwith and heard the learned
counsel for the parties.
WP 252-2023 2 Judgment
2. Respondent No.4 despite service has not chosen to contest the
present proceedings.
3. Petitioner No.1 and respondent No.4 were the candidates for
the post of Up-Sarpanch of the Gram Panchayat, Morgaon Sadijan. The
said elections were to be held on 4/1/2023. One of the Members of the
Gram-Panchayat had challenged the communication dated 30/9/2022 by
which the Sarpanch had been granted right of voting in the elections for
the post of Up-Sarpanch. The said Member had preferred Writ Petition
No. 12/2023 and by an interim order dated 3/1/2023, direction No.1 in
the communication dated 30/9/2022 to the extent it permits the
Sarpanch to vote in the election of Up-Sarpanch in the first round was
held to be non-operative. In the elections that were held on 4/1/2023,
respondent No.4 was elected with a difference of one vote. Subsequently,
the said Writ Petition came to be withdrawn and by relying upon the
order passed in Writ Petition No. 23/2023 (Pradip s/o Tekchand Shahare
and others Vs. The State Election Commission through its Secretary and
another) decided on 4/1/2023, the ad-interim order was vacated. It was
stated that the consequences would accordingly follow. In this backdrop,
the petitioners have raised challenge to the minutes of the Special
Meeting dated 4/1/2023 to the extent respondent No.4 has been held to
be elected as Up-Sarpanch.
4. It is submitted by the learned Counsel for the petitioners that
the Sarpanch could not have been restrained from voting in the election
of Up-Sarpanch which aspect has been considered and clarified in Writ
Petition No. 23/2023. Since a direction was issued in Writ Petition No.
12/2023 by vacating the ad-interim order that consequences would
follow, it is submitted that had petitioner No.2 voted in the said election,
there would have been equality of votes. It is thus prayed that a fresh
WP 252-2023 3 Judgment
meeting to elect Up-Sarpanch be conducted by setting aside the minutes
of the Special Meeting held on 4/1/2023.
5. The learned Counsel for respondent No.3 submits that this
situation has arisen in view of the ad-interim order passed on 3/1/2023.
Since that ad-interim order has been vacated with a direction that
consequences would follow, it is for respondent No.4 to challenge the
said decision. As stated, respondent No.4 has not chosen to contest the
petition.
6. On hearing the learned Counsel for the parties, we find that
legal position is clear in view of the decision in Salma Bi Vs. Collector,
Buldana and Others [(2022) 2 Bom CR 337] wherein the effect of
restoring status-quo ante has been considered as a consequence of the ad-
interim order being vacated. It is seen that petitioner No.2 could not vote
in the elections of Up-Sarpanch in view of the interim order. Since that
interim order has now been vacated with a direction that consequences
would follow, it is clear that the right of respondent No.4 to continue as
Up-Sarpanch is under a cloud. Since petitioner No.2 has categorically
submitted that had she been permitted to vote, there would have been
equality of votes and casting vote would have been in favour of petitioner
No.1, we find that the interests of justice would require a fresh election to
be held for the post of Up-Sarpanch. As a consequence of the interim
order being vacated, the minutes of the Special Meeting dated 4/1/2023
to the extent the Up-Sarpanch has been elected are thus quashed.
7. Accordingly, it is directed that respondent No.4 would cease
to hold the office of Up-Sarpanch. Respondent Nos. 1 and 2 shall take
necessary steps to hold fresh election for the post of Up-Sarpanch within a
period of ten days from today.
8. Rule is made absolute in the aforesaid terms. No costs.
WP 252-2023 4 Judgment
9. An authenticated copy of this order be supplied to the learned
Counsel for the parties.
(M.W. CHANDWANI, J.) (A.S. CHANDURKAR, J.)
SUMIT
