1 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3855 OF 2010 Shri Rajaram Bhaskar Mulik : Petitioner versus The State of Maharashtra & ors. : Respondent. WITH WRIT PETITION NO.3858 OF 2010 Sudhir Chimaji Sonawane : Petitioner Versus The State of Maharashtra and ors. : Respondents. Mr. A A Kumbhakoni with Mr. M S Karnik for the Petitioner in WP No.3855/10 Mr. A G Damle for the Petitioner in WP No.3858 of 2010. Mr. V S Gokhale AGP for Respondent No.1 in both the Petitions. Mr. G W Mattos for Respondent No.2 in both the Petitions. Mr. Pradeep Rajagopal for Respondent No.3 in both the Petitions. CORAM : A. M. KHANWILKAR, R. M. SAVANT, JJ. DATED : 05th May 2010 P.C. : 1 Heard counsel for the parties. 2 By these writ petitions, it is prayed that the direction be issued to the Election Commission of India not to notify election for the post of Member of Maharashtra Legislative Council for Thane 2 Local Authorities Constituency which will fall vacant on 8 th June 2010 and further to refrain from acting upon press note dated 20 th April 2010. 3 During the pendency of this Petition, the Election Commission of India has already issued election program on 4 th May 2010 which is consistent with the press note dated 20 th April 2010. Once the election program has been notified, it is well established position that it is not open to this Court to interdict the same. That is the constitutional mandate. Even if we were to accept the grievance of the Petitioner made before us, that would be of no avail to the Petitioner. According to the Petitioners, the position stated in the press note dated 20 th April 2010 by the Election Commission is manifestly wrong and not consistent with the letter and spirit of the order dated 1 st April 2010 passed by this Court in Writ Petition No.1796 of 2010 in the case of Shri Sudhir Chimaji Sonawane v/s. The State of Maharashtra and ors. in Writ Petition No.1796 of 2010 and connected matters. 4 The grievance of the Petitioners is that the consequence of holding the election as per the election program dated 4 th May 2010, 3 would result in unfair election of members of Maharashtra Legislative Council for Thane Local Authorities Constituency. Inasmuch as, four Councils within Thane District having about 89 councillors will be completely deprived of participating in the ensuing election process. More so, the term of the said councillors would come to end before the tenure of the newly elected member of the Maharashtra Legislative Council. For, the tenure of the said member of the Maharashtra Legislative Council would be of six years, whereas that of the Councillors would be of five years. 5 It is also submitted that the Election Commission for the reasons best known to it have hastened the election process in respect of the Thane Local Authorities Constituency in spite of the observations of this Court in the order dated 1 st April 2010 referred to above. On the other hand, there are at least two other vacant Maharashtra Legislative Council’s posts in respect of which no steps have been taken by the Election Commission so far. 6 In the present case, in so far as the Petitioners are concerned, the election to the concerned Municipal Council ought to have been held in any case on or before 3 rd January 2010. It is on 4 account of the inaction of the State Election Commission the present fortuitous situation has arisen thereby depriving such large number of councillors from participating in the election of the Member of Maharashtra Legislative Council for Thane Local Authorities Constituency. 7 It is also contended that the action of the Election Commission smacks of exercise of arbitrary power for the simple reason that on the one hand it has hastened to proceed to declare the election program in respect of Thane Local Authorities Constituency whereas no steps have been taken with regard to the other two posts of Maharashtra Legislative Council which are lying vacant for sufficiently long time coupled with the fact that there is no constitutional mandate requiring the election of member of Maharashtra Legislative Council from the concerned constituency within specified time. As aforesaid these grievances cannot be entertained at this stage, once the election program has already commenced. 8 In our opinion, no interference in exercise of writ jurisdiction is possible in view of the changed situation. The 5 Petitioners would be free to pursue such other remedy as may be advised by making a representation to the Election Commission for altering the date of nomination and/or the date of poll, or for that matter for filing election dispute if any. 9 All questions in the said proceedings will have to be examined on its own merits in accordance with law. 10. Petitions are disposed of accordingly. (R.M.SAVANT, J.) (A. M. KHANWILKAR, J.)