1 WP 4858.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4858 OF 2011 Kadubai W/o Bhagwat Kavde Age : 60 Yrs., Occ. Agril., R/o : Bibkheda, Tq. Kannad, Dist. : Aurangabad. .... PETITIONER V E R S U S 1. Gangadhar S/o Ramji Janrao Age : 63 Yrs., Occ. Agril., R/o : Bibkheda, Tq. Kannad, Dist. : Aurangabad. 2. Returning Officer Group Gram Panchayat Bibkheda, Tq. Kannad, Dist. : Aurangabad. 3. Sharad S/o Karbhari Kale Age : 33 Yrs., Occ. Agril., R/o : Bibkheda, Tq. Kannad, Dist. : Aurangabad. 4. Anita Punjaram Jadhav Age : 27 Yrs., Occ. Agril., R/o : Bibkheda, Tq. Kannad, Dist. : Aurangabad. 5. Sanjay Suryabhan Kavde Age : 45 Yrs., Occ. Agril., R/o : Bibkheda, Tq. Kannad, 2 WP 4858.2011 - [ J ] Dist. : Aurangabad. 6. Salubai Khevjiram Aagwale Age : 50 Yrs., Occ. Agril., R/o : Bibkheda, Tq. Kannad, Dist. : Aurangabad. 7. Bhausaheb Vishram Pawar Age : 35 Yrs., Occ. Agril., R/o : Bibkheda, Tq. Kannad, Dist. : Aurangabad. 8. Gram sevak Gram Panchayat Bibkheda, Tq. Kannad, Dist. : Aurangabad. 9. Election Centre Chief Gram Panchayat Bibkheda, Ward No. 2, Tq. Kannad, Dist. : Aurangabad. .... RESPONDENTS Mr. K.F.Shingare, Advocate for the petitioner. Mr. S.E.Madne, Advocate for Respondent No.1. CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 14/11/2011. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties taken up for final hearing. 3 WP 4858.2011 - [ J ] 2. The petitioner is elected as Member from Ward No. 2 of the Gram Panchayat of village Bibkheda, Tq. Kannad, Dist. Aurangabad. The election of the present petitioner was challenged by respondent no. 1 by filing the Election Petition before the learned Civil Judge ( Jr.Division), Kannad on the ground that the petitioner and the present respondent nos. 8 and 9 have engaged in corrupt practice and thereby changed the voters’ list at the eleventh hour illegally, so also, did not properly form the wards. The trial Court allowed the Election Petition and set aside the election of the present petitioner. The petitioner has assailed the said Judgment in the present Writ Petition. 3. This Court on 11/07/2011 had issued notice of final disposal to the respondents. Pursuant thereto, respondent no. 1 appeared through Mr. Madne, the learned counsel and respondent no. 2 is represented by Mr. S.T. Shelke, the learned counsel. Rest of the respondents did not appear. 4. Mr. Shingare, the learned counsel for petitioner submits that the trial Court has specifically come to the conclusion that the petitioner nor any person had engaged in corrupt practice. However, the election is set aside sheerly on the ground that the Officers at the eleventh hour, without following proper procedure, changed the voters’ list, so also the 4 WP 4858.2011 - [ J ] ward formation was not proper. According to the learned counsel, the same can not be the subject matter of Election Petition U/s 15 of Bombay Village Panchayat Act [ For short ‘ said Act ’ ] more particularly, in view of sub section ( 7 ) of Section 15 of the said Act. The learned counsel relies on the Judgment of the Division Bench of this Court in the case of Dhondba V/s Civil Judge, Hinganghat ((A.C.J.) reported in 1966 Bombay Law Reporter Vol. LX VIII and also the Judgment of the learned Single Judge of this Court in the case of Baburao V/s Manikrao reported in 1998 MCR – 600. 5. Mr. Madne, the learned counsel for respondent no. 1 submits that the elections have been materially affected in view of the acts of the Officers. The elections were to be held on 10/08/2010 and the voters’ list was abruptly changed on 08/08/2010 without issuing any notice. The same was not in consonance with the rules. In view of that, the Court was justified in setting aside the election. The learned counsel contends that the voters list is a part of election process and the same can be assailed in the Election Petition. For the said purpose, the learned counsel relies on the Judgment of the Apex Court in the case of Shri Sant Satguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another V/s State of Maharashtra and others reported in 2002 ( 1 ) Mh.L.J. - 659 and the Judgment of the Division Bench of this 5 WP 4858.2011 - [ J ] Court in the case of Baburao Kalu Koli V/s State of Maharashtra and others reported in 2007 ( 6 ) Bom.C.R. - 6 and contends that even this Court can consider about the illegality in the ward formation and reservation of seats. According to the learned counsel, the learned Judge has properly considered the record and has arrived at the just conclusion. 6. Mr. S.T. Shelke, the learned counsel for respondent no. 2 submits that voters’ list and ward formation has been done as per the exigency of the circumstances. The voters’ list is adopted as per Section 12 of the said Act, so also, the ward formation is made in consonance with the rules. No fault can be found in the same. 7. With the assistance of the learned counsel, I have gone through the Judgment delivered by the learned Judge impugned in the present Writ Petition. 8. From the perusal of the impugned Judgment, it is manifest that the trial Court has specifically come to the conclusion that the petitioner has not engaged in corrupt practice nor any Officer has engaged in corrupt practice. The learned Judge has negatived the ground put-forth by respondent no, 1/election petitioner about the corrupt practice. In such circumstances, the only question to be decided is whether the 6 WP 4858.2011 - [ J ] election of the petitioner could have been set aside by the learned Judge solely on the ground that the voters’ list is not properly prepared. Sub Section ( 7 ) of Section 15 of the said Act reads thus, “ If the validity of any election is brought in question only on the ground of an error made by the officer charged with carrying out the rules made in this behalf under Section 176 read with sub-section ( 2 ) of Section 10 and Section 11, or of an irregularity or informality not corruptly caused, the Judge shall not set aside the election ”. 9. The Division Bench of this Court in the case of Dhondba V/s Civil Judge, Hinganghat [ supra ] has specifically held that the election of a candidate can not be challenged under the provisions of Section 15 of the said Act on the ground of error in the voters’ list. I am bound by the Judgment of the Division Bench of this Court in the case of Dhondba V/s Civil Judge, Hinganghat [ supra ]. 10. Judgment in the case of Baburao Kalu Kohli [ supra ] relied by the learned counsel for respondent no. 1 would not be of any assistance to the respondent no. 1 for the reason that the said case was dealt by this Court in exercise of its extra ordinary jurisdiction of Article 226 of the 7 WP 4858.2011 - [ J ] Constitution of India, wherein the Court has come to the conclusion that there is manipulation in the ward formation depriving other persons’ right to be elected. In such exigency of circumstances, the Division Bench of this Court in the case of Baburao Kalu Kohli [ supra ] has entertained the said Writ Petition. 11. In the present Writ Petition, the issue is regarding such challenge being permitted to be raised in the Election Petition. The said issue is no longer res integra in view of the Judgment of the Dhondba V/s Civil Judge, Hinganghat [ supra ]. 12. In light of the above, the Writ Petition will have to be allowed by quashing and setting aside the impugned Judgment. 13. In the result, the Writ Petition is allowed. 14. Rule is made absolute in terms of prayer clause ‘ B ’. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 4858.2011 - [ J ]