1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.865 OF 2009 Aziz Abdulkarim Barudgar .. Petitioner -versus Mumbai Municipal Corporation and 2 ors .. Respondents. Mr. A.A. Kumbhkoni a/w Mr H.S. Anand i/b Sarita Donde for the Petitioner. Mrs. Geeta Joglekar for BMC Mr M.M.Vashi i/b M.P. Vashi & Associates for respondent No.3 CORAM: A.M. KHANWILKAR & R. G. KETKAR, JJ DATED: 3rd August, 2009. P.C. 1. Heard counsel for the parties. The petitioner by this writ petition under Article 226 of the Constitution of India, seeks direction that the election of respondent No.3 as Chairman of K/West Ward Committee, be set aside 2 and for further direction that the petitioner be declared as elected for the said post. 2. The grievance of the petitioner is that in terms of Rule 3 of the Notification dated 21st February,2007 the Presiding Officer called upon members present to vote by ‘show of hands’. That process was concluded and thereafter the Presiding Officer called upon the members to sign on the register. The members, under mistaken belief, that it was an attendance register, signed in the column which was contrary to their intention expressed by them during ‘show of hands’ in favour of the petitioner. That argument in the first place clearly overlooks the minutes recorded by the Municipal Secretary. The Municipal Secretary in his minutes has plainly recorded that after show of hands it transpired that 8 members voted in favour of respondent No.3 and four members voted in favour of petitioner. Thereafter the results were declared. 3. However, in view of some discrepancy in the register at Exhibit B, it is argued that the election 3 process is vitiated. It is argued that the stand of the petitioner can be substantiated by seeing Video recording which was done by the Presiding Authority, as per Rule l0 of the Notification. 4. We are of the considered opinion that the minutes recorded by the Municipal Secretary will prevail while examining the controversy brought before this Court. Going by the said minutes it is obvious that 8 members present in the members meeting voted in favour of respondent No.3 by show of hands, whereas only four members voted in favour of the petitioner by show of hands. The signatures recorded by the concerned members in the register would support this position. The fact that one of the member Devendra Shridhar Amberkar put his signature in both the columns would indicate that he voted for both the candidates. That can not be the basis to doubt the authenticity and genuineness of the election in question. We may notice that section 53 of the Mumbai Municipal Corporation Act, 1888, postulates that the proceeding of meeting shall be deemed to be good 4 and valid until the contrary is proved. The minutes recorded by the Municipal Secretary, therefore, will prevail assuming that some discrepancy can be noticed from the Video recording. 5. Taking overall view of the matter, we are of the view that it is not possible for this Court to delve upon the disputed question of fact and more so in view of the statutory provision, section 53 of the Mumbai Municipal Corporation Act, l888, which stipulates that the proceeding recorded by the Municipal Secretary will be deemed to be valid and until the contrary is proved. For to rebut such legal presumption would require producing evidence and adjudicating disputed question of fact. Accordingly this petition fails. The same is dismissed. (A.M. KHANWILKAR, J) (R.G. KETKAR, J)