1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4699 OF 2009 Chandrakant Subhash Patil ... Petitioner v/s Ramrao Dattatraya Patil & anr. ... Respondents Mr.A.A.Kumbhakoni i/by Machindra Deshmukh for the petitioner. Mr.G.S.Godbole i/by Umesh R. Mankapure for the respondent No.1. CORAM: SMT.NISHITA MHATRE, J. DATED: 22ND JUNE, 2009 P.C.: 1. The petitioner has approached this Court contending that the order dated 26.3.2009, by which the Trial Court decided the election petition filed by the respondent No.1 and has appointed an Engineer of the Electronic Corporation of India Ltd., Hyderabad, as a Court Receiver is perverse. 2 2. The petitioner is an elected candidate against whom the election petition has been filed by the respondent No.1. The respondent No.2 is another unsuccessful candidate who has not appeared at all during the proceedings. 3. The main ground of challenge to the petitioner’s election appears to be that, votes have been recorded against the names of dead persons. This fact has been admitted by the petitioner herein in his written statement and it is contended that, besides the names mentioned by the election petitioner i.e. the respondent No.1 herein, several others whose names appear in the voters’ list are dead and votes have been polled in their names. Undisputedly, the difference between the votes polled for the petitioner and the 1st respondent is 10. Therefore, only if the election petitioner is able to demonstrate that 10 votes polled were in the name of dead persons that the election petition could be sustained on this ground. 4. In my view, the order passed by the Trial Court is unsustainable. There is no need at all to appoint an Engineer in the election petition as a 3 Court Receiver to open the votes at this stage. The election petitioner is yet to establish through evidence the identity of the voters who are dead. It is contended by the learned advocate appearing for the 1st respondent that there is material on record including the 1st respondent’s evidence to indicate that 40 persons whose names appear on the voting list are in fact dead and their death certificates have been produced. However, it will be necessary to further establish through evidence by co-relating the name of the person who is dead from the voters’ list and the death certificate produced in respect of that person. According to the learned advocate for the petitioner, there is a discrepancy amongst the names of some of the persons on the voters’ list who allegedly are dead and the death certificates produced and unless this identity is established no further orders can be passed. This submission must be accepted. The election petitioner i.e. the respondent No.1 herein would have to first establish the identity of persons who are dead and co-relate the names of those persons with the death certificates produced. In case the discrepancy in the names is found, then it would be necessary for the election petitioner i.e. respondent No.1 herein 4 to lead cogent evidence to establish that there is no discrepancy in the names contained in the voters’ list and the death certificates. Once that stage is over, it would be necessary for the Court to compare the death certificates with the voters’ list and to ascertain whether there are 10 names of such persons who have supposedly caste their vote, as the difference between the votes polled by the petitioner and the respondent No.1 herein is only 10. In the event such votes which have been caste in the name of dead persons is less than 10, then there would be no need to continue with the exercise in this respect of ascertaining whether the votes cast are in favour of the petitioner or respondent No.1. 5. Accordingly, the impugned order is set aside. 6. The election petitioner i.e. respondent No.1 shall lead cogent evidence to co-relate the names of such persons who are allegedly dead with the death certificates produced. After this exercise is complete, the Court will ascertain whether the death certificates do pertain to persons whose names are borne on the voters’ list. If the number is more 5 than 10, then the Court can ascertain the number of votes polled by such persons in favour of the petitioner or the 1st respondent and accordingly decide the election petition. However, if the number is less than 10, then the entire exercise in this respect need not be proceeded with. 7. Writ petition disposed of accordingly. Parties to act on the authenticated copy of this order. ..... 6