1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.5231 of 2009 (Sau. Bharati Sunilkumar Wadal v. The Additional Collector and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri S.D. Chopde, Advocate for Petitioner. Shri N.S. Khubalkar, AGP for Respondent Nos.1 and 2. Shri A.V. Gawande, Advocate for Respondent Nos.4 and 5. Coram : B.P. Dharmadhikari, J. Dated : 14 th December, 2009 1. Heard Shri S.D. Chopde, learned counsel for the petitioner; Shri N.S. Khubalkar, learned AGP for respondent Nos.1 and 2; and Shri A.V. Gawande, learned counsel for respondent Nos.4 and 5. Considering the nature of controversy, service upon respondent No.3 is dispensed with. 2. Respondent No.5 has filed a petition challenging the election of the petitioner as Sarpanch of the respondent Gram Panchayat. Respondent No.4 is another candidate, who has lost in that election. 3. The basic contention being pressed before respondent No.1 – The Additional Collector, Akola, is that there was no three days’ clear notice. According to respondent No.5, the notice was served on 16-9-2009. According to the petitioner (elected Sarpanch), the notice was served upon her and other persons on 15-9-2009 itself and hence before 18-9-2009, there was three days’ clear notice. 2 4. In this background, the present petitioner moved an application seeking leave to adduce evidence and that application has been rejected. 5. The learned counsel for the petitioner argues that it was incumbent upon the petitioner to show that there was three days’ clear notice and hence she wanted to lead evidence. 6. The learned counsel for respondent Nos.4 and 5 states that as respondent No.5 had filed the election petition, burden was upon respondent No.5 to show that the notice was not served on 15-9-2009, but the same was served on 16-9-2009. He contends that no burden lies upon the present petitioner (elected Sarpanch), and she had deliberately filed an application only to prolong the trial. 7. The learned AGP supports the impugned order. 8. Perusal of the impugned order reveals that respondent No.1 – The Additional Collector has found that the election petition can be decided without adducing any evidence. He has not decided the correctness or otherwise of the contentions and facts before him. The election-petitioner, therefore, has to demonstrate that the notice was not served on 15-9-2009, but the same was served on 16-9-2009. If there is any disputed question of fact in this respect arising out of record or otherwise, the initial burden to prove lies upon the present respondent No.5. As respondent No.5 has chosen not to lead any evidence, it is apparent that the said burden cannot and does not shift to the elected Sarpanch at all. 3 9. One of the orders challenges is dated 28-10-2009, by which the application of the present petition to join all the ward members as parties to election petition has been rejected. The learned counsel for the petitioner states that as all the members had voted in the election, they are necessary parties. The learned counsel for respondent Nos.4 and 5 states that only the contesting parties in the election are necessary parties. It is apparent that the persons, who contested the election, are already joined as parties and hence the voters are not necessary parties. The order dated 28-10-2009, therefore, does not call for any interference. 10. In view of this position, I find that the grievance made by the present petitioner is misconceived – at least at this stage. The writ petition is, therefore, dismissed. However, in the circumstances of the case, there shall be no order as to costs. 11. Needless to mention that interim stay granted earlier stands vacated. Judge. pdl