1 cra 553-2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 553 OF 2010 Arif Ibrahim Choudhari ...Petitioner vs. Sou Vahida Aayyaj Nayakwari & Ors. ...Respondents Mr.A.A. Kumbhakoni i/b. Mr.Ashutosh M. Kulkarni for the Petitioner. Mr.M.L. Patil for Respondent No.1. Mr.G.H. Keluskar for Respondent Nos.3 and 4. CORAM : B.R. GAVAI, J. DATED : JANUARY 13, 2011 P.C :- 1 By way of present revision application, the petitioner challenges order dated 27th August, 2010 vide which the application filed by the present petitioner for rejection of the petition on the ground that the petition was barred by the law laid down by the Apex Court in the case of R. Chandran vs. M.V. Marappan (AIR 1973 Supreme Court 2362) came 2 cra 553-2010 to be rejected. 2 The petitioner and the respondent in the Election Petition had contested the election for the Municipal Corporation. In the said election, the petitioner was successful whereas the respondent lost. Being aggrieved thereby, an Election Petition was filed. In the election petition, an application came to be filed under the provision of Order 7 Rule 11(d) CPC contending therein that in view of the law laid down by the Apex Court in the case of R. Chandran (cited supra), once the name of the candidate was included in the Voters List, it was a conclusive proof of his eligibility to contest the election and as such, the election petition was not tenable. The same is rejected. Hence, the present CRA. 3 Shri Kumbhakoni, the learned Counsel for the petitioner submits that the learned trial court ought to have taken into consideration that the 3 cra 553-2010 pronouncement of law under Article 142 of the Constitution was binding on all the Courts and once the Apex Court has held that the inclusion of name in the Voters List was conclusive proof of his eligibility to contest an election, then the election petition itself was liable to be dismissed. 4 No doubt that the Apex Court in the case of R. Chandran (cited supra) has held that the inclusion of name in the Voters List was a conclusive proof of his eligibility to contest the election. However, it is to be taken into consideration that in the case before the Apex Court, the age for being a voter and age for being the candidate was the same i.e. 21. However, in the present case, the age for getting right to vote is 18 years whereas as per the provisions of Section 9 of the Bombay Provincial Municipal Corporation Act, the minimum age to contest the election is 21. The Apex Court in the aforesaid case has itself held that though the inclusion in the Voters List was the 4 cra 553-2010 conclusive proof for eligibility of the candidate, however, the question of age could be gone into where Article 173 of the Constitution was attracted and the candidate was not less than 25 years. It is to be noted that under Article 173, a candidate to contest an election to the Legislative Assembly is to be 25 years. Similarly, in the present case, in so far as elections to the Municipal Corporation are concerned, a candidate has to be of 21 years of age. In view of the law laid down by the Apex Court itself, the question as to whether the petitioner was 21 years of age or not on the date on which he submitted his nomination paper could very well be gone into election petition. In that view of the matter, no error is found in the order passed by the learned trial court to warrant interference. Writ Petition rejected. 5 Needless to state that this Court has considered the present application in so far as the aspect of applicability of Order 7 Rule 11(d) CPC 5 cra 553-2010 is concerned and has not considered the matter from other aspects. The trial court shall decide the petition on its own merits after considering the evidence led on behalf of the parties. (B.R. GAVAI, J.)