1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5993 OF 2009 Rahematulla Haji Abdul Latif Khan, R/o-Plot No.35, Lane No.2, Mulla Nagar, Near Surat Bakery, Chalisgaon Road, Dhule, Tq. & Dist-Dhule. .. PETITIONER. Versus 1) Yuvraj s/o Chaitram Patil, R/o-Flat No.102, Laxmi Apartment, Vishal Nagar, Malegaon Road, Dhule, Tq. & Dist-Dhule, 2) The Returning Officer, Block No.19 to 43, Dhule Municipal Corporation, General Election 2008, Dhule. 3) Fakruddin Ahmed Lohar, R/o-Plot No.49-A, Avishkar Colony, In front of Mandir, Chalisgaon Road, Dhule, Tq. & Dist-Dhule, 4) Sheikh Firaj @ Sheikh Firoz, R/o- Plot No.195, Durbal Ghatak Ward No.4, Garib Nawaz Nagar, Dhule, Tq. & Dist-Dhule, 5) Municipal Corporation of City of Dhule, Tq. & Dist-Dhule. .. RESPONDENTS. 2 ... Mr. C.R. Deshpande, Advocate for Petitioner. Mr. Mukul Kulkarni, Advocate for Respondent No.1. ... CORAM : K.K. TATED, J. DATE : 9TH SEPTEMBER, 2009. PER COURT : 1. Heard learned counsel for the Petitioner and learned counsel for Respondent No.1. Present Petition preferred by original Respondent No.2 in Election Petition No.3 of 2008 under Articles 226 and 227 of the Constitution of India challenging the order dated 3rd August, 2009 passed by the Civil Judge, Senior Division, Dhule on the application filed by Respondent No. 1 dated 18th July, 2009. A few facts of the matter are as under: . The Respondent No.1 filed Election Petition No.3 of 2008 before the Civil Judge, Senior Division, Dhule under Section 16 of the Bombay 3 Provincial and Municipal Corporation Act, 1949 challenging the Petitioner's election. In the said Election Petition, Respondent NO.1 preferred application dated 18th July, 2009 seeking directions to Respondent No.5 i.e. Municipal Corporation, Dhule City, Dhule to produce records relating to the election of Ward No.64 of Municipal Corporation, Dhule City, Dhule held on 30th November, 2008. Prayer clause (b) of the said application dated 18th July, 2009 reads as under: "(b) The respondent No.1 may kindly be directed to produce in the Hon'ble Court the record relating to election of ward No. 64 of Municipal Corporation of Dhule City held on 30.11.2008, such as nomination paper, ballot boxes and other concerning record relating to scrutiny of nomination paper and also voting 4 conducted in ward No.64." 2. On the said application dated 18th July, 2009, the trial court called upon Respondent No. 5 Municipal Corporation, Dhule to submit their say. 3. It is the case of the Petitioner that the trial Court without calling the say from the Petitioner, allowed the said application by impugned order dated 3rd August, 2009. Learned counsel for the Petitioner submitted that the said order passed by the trial Court without hearing and without giving opportunity to the Petitioner to show cause. Therefore, the said order is against the natural justice, equity and good conscience and the same is liable to be set aside. He further submitted that those records are not relevant to the present election petition. 4. On the other hand, learned counsel for 5 Respondent No.1 submitted that the trial Court considered the say of Respondent No.5 i.e. Municipal Corporation, Dhule and passed order directing them to produce the said documents. It is admitted fact that these documents are in possession of Respondent No.5. After considering their say, the Court has passed impugned order. In support of his contention, learned counsel for Respondent No.1 relied on the Judgment in the matter of Abdul Gaffar Abdul Karim Rarani vs. Abdul Ruhim Pappu (Dr.) and others, reported in 2005 (1) Bom. C.R. Page 863. He particularly relied on Para 9 of the Judgment, which reads as under: "(9) The prayers as read and reflected from the election petition, further contemplate that the Judge will take decision at one stroke, and he will declare or he will dismiss or he will allow the petition. The Court can definitely pass final order while considering the material including of the 6 relevant tender votes. If this is done, I see that no prejudice will be caused to any parties. On the contrary this will help the Court to arrive at a particular conclusion. There is no illegality and order is within the frame work of the Act and Rules. There is no question of invoking principle of natural justice in view of specific provisions of Election Inquiries, in view of the facts and circumstances of the case." 5. In any case by impugned order dated 3rd August, 2009, the trial Court directed the Respondent No.5 to produce the documents relating to the election of Ward No.64 of Municipal Corporation, Dhule which are in their custody. Those documents may or may not be exhibited at the time of hearing of Election Petition No.3 of 2008 and that can be decided at the time of hearing of the said Petition. The 7 Petitioner can challenge the relevancy and admissibility of those documents during the trial of the Election Petition. I do not find any substance in the present Writ Petition and same is dismissed summarily. [ K.K. TATED, J.] asb/SEP09/wp5993.09