{1} WP834110.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8341 OF 2010 1 Sunandabai Ashok Mahajan, age: 39 years, Occ: Household; 2 Devidas Dashrath Johare, age: 42 years, Occ: Agril., Both R/o Hivarkhede (Bk), Tq.Jamner, Dist. Jalgaon. Petitioners Versus 1 State Election Commission, Maharashtra State, through its Commissioner, New Administrative Building, Madam Cama Road, Opposite Mantralaya, Mumbai-32. 2 Returning Officer for General Elections of Village Panchayat Hivarkhede (Bk), Tq.Jamner, District Jalgaon - (Shri M.D.Chaudhary, Sectional Engineer, Minor Irrigation Division, Sub Division Pachora, District Jalgaon.) 3 Returning Officer for elections to the post of Sarpanch and Deputy Sarpanch of village Panchayat Havarkhede (Bk), Tq.Jamner, Dist. Jalgaon (Shri B.A.Pandhare, {2} WP834110.odt Circle Officer, Jamner Circle, Tq.Jamner, Dist. Jalgaon. 4 Kalabai Shivdas Mahajan, age: 40 years, Occ: Household, R/o Havarkhede (Bk), Tq.Jamner, District Jalgaon. 5 Shriram Chokha Johare, age: 50 years, Occ: Agril., R/o Hivarkhede (Bk), Tq.Jamner, District Jalgaon. Respondents Mr.M.S.Deshmukh, advocate for petitioners Mr.S.T.Shelke, advocate for Respondents No.1 & 2. Mr.K.J.Ghute Patil, A.G.P. for Respondent No.3. Mr.M.M.Bhokarikar, advocate for Respondents No.4 & 5. CORAM : R.M.BORDE, J. DATE : 28 th October, 2010 JUDGMENT: 1 Rule. Rule made returnable forthwith and heard finally by consent of learned Counsel for respective parties. 2 The petitioners are requesting for issuance of writ of Quo-warranto or other appropriate writ or order in the like nature for quashment and setting aside the decision rendered by Respondent no. 2 – Returning Officer for election of Village Panchayat Hivarkhede (Bk), to the extent of declaring Respondents {3} WP834110.odt 4 and 5 as elected members of Village Panchayat from ward no. 3. Petitioners are also seeking direction to the Respondents for declaring them to have secured highest number of votes and further to declare them as elected members of Village Panchayat from ward no. 3 of village Hivarkhede (Bk). 3 Petitioners as well as Respondent nos. 4 and 5 were contesting candidates at the elections of Village Panchayat Hiwarkhede (Bk) from ward no. 3. There were three seats required to be elected from said ward and, out of the three seats, one was earmarked for backward class (woman) and one was reserved for back ward class of citizens and the third seat was from general category. The dispute in the petition is restricted in respect of election to the seat from general category as well as for a seat reserved for backward class of citizens (woman). 4 It is not disputed that the election to the said ward alongwith other wards was conducted by Respondent no. 2 - Returning Officer and the votes were recorded on 05,09.2010. For the purpose of recording of votes, electronic voting machines were put into operation and the names noted for the purpose of casting votes and the serial numbers of each of the contesting candidates from ward no. 3 were noted as per the chronology noted in Annexure ‘A’ to the petition. The name of petitioner no. 1 Sunandabai was listed at Sr. No. 6, whereas the name of petitioner {4} WP834110.odt no. 2 – Devidas Johare was listed at Sr. No. 2. So far as contesting respondents are concerned, the name of respondent no. 4 was listed at Sr. No. 5 and the name of respondent no. 5 was listed at Sr. no. 4. The votes were accordingly recorded with the help of electronic voting machines. 5 It is not disputed that petitioner no. 1 and respondent no. 4 were the contesting candidates from backward class of citizens (woman) category, whereas petitioner no. 2 and respondent no. 5 were the contesting candidates from general category. It is the contention of the petitioners that while counting votes, the Returning Officer erroneously changed the serial numbers of the contesting candidates and the chronology of names while counting votes of each of the contesting candidates from ward no. 3, as recorded in Appexure ‘B’ at page no. 15 of the petition. Annexure B is the result sheet in form no. 4. As a result of change in serial numbers / chronology of the contesting candidates while counting votes, the results of the election are vitiated. It transpires that name of petitioner no. 1 appeared at Sr. No. 6 while recording votes with the help of electronic voting machine, whereas her name is recorded at Sr. no. 4 while counting votes. So far as petitioner no. 2 is concerned, his name finds place at Sr. No. 3 while recording votes and it has been shifted to Sr. No. 5 while conducting counting of votes. Placement of respondent nos. 4 and 5 has also been changed and instead of showing the name of respondent no. {5} WP834110.odt 4 at Sr. No. 5, her name is recorded at Sr. No. 3 while counting votes, whereas name of respondent no. 5, which ought to have been at Sr. No.4, has been shown at Sr. No. 6 while counting the votes. The votes secured by respective petitioners were thus shown to have been secured by respondent nos. 4 and 5 and the result of the election has been declared erroneously as a result of change in the chronology effected by the Returning Officer while counting votes secured by the contesting candidates at the election. Thus, petitioner no. 1, who has, in fact, secured 268 votes, is shown to have secured only 207 votes, whereas respondent no. 5 is shown to have secured 268 votes, erroneously. Same is the case with petitioner no. 2. Petitioner no. 2 in fact has secured 301 votes, however, the votes secured by petitioner no. 2 were shown against the name of respondent no. 4 and petitioner no. 2 is shown to have secured 240 votes instead of 301. 6 It is contended that the error committed by the Returning Officer in making final declaration of result on account of change in chronology of the contesting candidates while conducting counting has vitiated the election so far as petitioners and respondent nos. 4 and 5 are concerned. It is further contended that the error committed by respondent no. 2 Returning Officer is capable of being corrected by issuing appropriate directions. It is also contended that respondent nos. 4 and 5, in fact, cannot be considered to have been validly elected members {6} WP834110.odt and as such they do not have right to continue as members of the village panchayat. 7 Respondents No.4 and 5 have opposed the petition by presenting affidavit-in-reply. All the adverse allegations made in the petition have been denied by the contesting respondents. It is the contention of Respondents that in view of availability of alternate remedy of presentation of election petition, instant petition is not liable to be entertained. The contesting Respondents have also opposed the petition in view of the constitutional bar contained in Article 243-O of the Constitution. 8 On 14 th September 2010, the petition was taken up for admission hearing. One Mohan Dnyandeo Chaudhary, the Returning Officer - Respondent No.2 was present in the Court and he stated that there is an error committed while declaring results of the election. It was also specifically admitted by the Returning Officer that the serial numbers of the contesting candidates noted in Annexure-`A’ have been changed while declaring the results noted in Annexure-`’B. The net result of change of serial numbers of contesting candidates from the said ward is that the candidates, who ought not to have been declared as elected, have been declared elected. After recording statement of the Returning Officer, this Court has passed interim order in the matter. At the same time, the Collector was directed to inquire into the matter and submit {7} WP834110.odt report on the next date. Accordingly, the Collector has conducted inquiry and submitted his report on 22.10.2010, which is taken on record and marked “X” for identification. It is specifically recorded in the report that as a result of the error occurred in making declaration of results, one Johare Shriram i.e. Respondent No.5 has been declared elected instead of petitioner no.2 - Johare Devidas and one Mahjan Kalabai i.e. Respondent No.4 has been declared elected instead of petitioner no.1 - Mahajan Sunandabai. It is also reported that the Returning Officer is responsible for the error committed while declaring the results. It is also noted in the report that the error has occurred as a result of change in chronology of the contesting candidates while counting the votes and declaring results. Although the Returning Officer has admitted his error, in the opinion of the inquiry officer i.e. the Collector, further disciplinary action is required to be taken against the Returning Officer as well as one Shri L.M.Thakare, Talathi, who was assisting the Returning Officer. 9 On consideration of the contentions raised by petitioners in the petition as well as on consideration of the report tendered by the Collector, it appears that the Returning Officer has committed error while declaring the results. The error occurred is as a result of change in chronology of the contesting candidates. The votes secured by Respondents No.4 and 5 were erroneously shown against the names of petitioners no.1 and 2. In fact, on the {8} WP834110.odt basis of votes secured by the petitioners, they ought to have been declared elected, however, as a result of change in chronology of the contesting candidates while counting votes, Respondents No.4 and 5 were erroneously declared elected. The error committed by the Returning Officer has been accepted by him. Not only the report submitted by the Collector is accompanied with the statement of the Returning Officer, but the Returning Officer himself has appeared before this Court on 14th September, 2010 and has admitted the inadvertent error committed by him, which fact has been recorded by this Court while passing interim order. Thus, the error committed by the Returning Officer has resulted in erroneous declaration of Respondents No.4 and 5 as returned candidates instead of petitioners and as such, the said error is capable of being corrected in peculiar facts and circumstances of this case, in exercise of extraordinary jurisdiction vested in this Court under Article 227 of the Constitution of India. 10 The entertainment of the petition has been strongly opposed by Respondents No.4 & 5 on the ground that there is an efficacious alternate remedy provided under the statute and unless petitioners take recourse to presentation of an Election Petition, the declaration of results by the Returning Officer cannot be set aside. The contesting Respondents also contend that in view of the constitutional bar provided under Article 243-O, it would not be permissible for this Court to cause interference in the electoral {9} WP834110.odt matters. 11 Reliance is placed on the judgment of Division Bench of this Court in the matter of Ashruba Yogiraj Sanap & others Vs. State of Maharashtra & others, reported in 2008 B.C.I. 122. The Division Bench of this Court, in view of the provisions of statute as well as considering the constitutional bar, in the reported matter, did not deem it appropriate to cause interference. However, the Division Bench has observed in paragraph 9 of the Judgment, thus: “It is, therefore, possible to visualise a rare case where this Court could still invoke its jurisdiction under Articles 226 and 227 of the Constitution of India. To what extent and in what circumstances and at what stage is a large issue, which we do not propose to answer considering the facts in the present case.” 12 In the matter of Sarla w/o Sopan Bopale Vs. State of Maharashtra & others, reported in 2001 (2) Bom. C.R. 730, decided by a Division Bench of this Court, the issue was in respect of modification of results taking recourse to provisions of Section 21 of the General Clauses Act and the Division Bench of this Court has held that the Returning Officer could not go beyond the powers vested in him by the statute i.e. Bombay Village Panchayats Act and Rules, but the remedy against it, could be under Section 15 of {10} WP834110.odt the Act and not a writ petition. The Division Bench has referred to a judgment of the Apex Court in the matter of Election Commission of India, through Secretary Vs. Ashok Kumar and others, reported in 2000 (6) SCALE 182. In the cited judgment, it is observed by the Apex Court, thus: “Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.” (underline supplied) 13 In the case of Harnek Singh Vs. Charanjit Singh and others, reported in AIR 2006 SC 52, the Apex Court has laid down a proposition that Article 243-O of the Constitution mandates that all election disputes must be determined only by way of an Election Petition. However, the Court proceeds to observe in para 16 of the judgment, thus: “This by itself may not per se bar judicial review which is the basic structure of the Constituition, but ordinarily such jurisdiction would not be exercised. There may be some cases where a writ petition would be entertained but in this case we are not {11} WP834110.odt concerned with the said question.” 14 In the case of K. Venkatachalam Vs. Swamickan and another, reported in AIR 1999 SC 1723, the Supreme Court, while confirming the decision rendered by the Kerala High Court, has observed that: “‘The bar of Article 329(b) will not come into play when case falls under Articles 191 and 193 and whole of election process is over.” It is also observed by the Apex Court that: “Article 226 of the Constitution is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief.” 15 On consideration of the judgments cited above, it is clear that there is no total bar in exercise of jurisdiction by the High Court under Article 226 of the Constitution. However, recourse to the remedy has to be taken in appropriate cases. In my opinion, this is a appropriate case wherein the error committed by the Returning Officer, which has been admitted by the {12} WP834110.odt concerned authority, is capable of being corrected. 16 Apart from admission of error by the Returning Officer, the report of the Collector placed on record also clearly reveals that there occurred an error while declaring results of the election and Respondents No.4 and 5, who had, in fact, secured less number of votes, were erroneously declared as elected instead of petitioners. In these extraordinary circumstances, there is no propriety in relegating the petitioners to a remedy provided under the statute. 17 In this view of the matter, petition deserves to be allowed and same is accordingly allowed. The election of Respondents No.4 and 5, as members of village Hiwarkhede (Bk.), Tq. Jamner, is quashed and set aside. Respondents are directed to declare petitioners as returned candidates in place of Respondents No.4 and 5 and correct the result sheet accordingly. Necessary steps shall be taken by the respondents for issuing notification in respect of election of petitioners as members of village panchayat Hiwarkhede (Bk.) from Ward No.3, expeditiously. 18 Rule is accordingly made absolute. In the facts and circumstances of this case, there shall be no order as to costs. R.M.BORDE JUDGE adb/wp834110