1 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY \ ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1248 OF 2010 RAVI KONDU RAJA & ORS. .. PETITIONERS Vs. THE MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS. .. RESPONDENTS Mr. Bharat Joshi for petitioners Mr. K. K. Singhvi for R-1 Mr. B.D. Joshi for R-2 Mr. R. V. Govilkar i/b Mr. J.G. Savant for for R-7 Mr. Milind More, AGP for R-8 CORAM: SMT. RANJANA DESAI & R. V. MORE, JJ. DATED: 9th September,2010 P.C. (Per Smt. Ranjana Desai, J.) The petitioners and respondents 2 and 7 are elected Councilors from different constituencies of F/Ward of the 1st respondent i.e. Municipal Corporation of Greater Mumbai (“Corporation” for short). The 2nd respondent who is a Councilor of one constituency of F/Ward was elected as Mayor. There are total 2 17 Councilors elected from different constituencies of F/Ward. 2. The Corporation is the statutory body constituted under the Municipal Corporation of Greater Mumbai Act (“the said Act”). The 3rd respondent is the Municipal Commissioner of the 1st respondent. The 4th respondent is the Municipal Secretary, who is statutorily obliged to assist the presiding authority in election process. He was thus statutorily obliged to assist the presiding officer in the election of the Chairman of Ward Committee of the F/Ward which was held on 15/4/2010 in the Ward Office of F/Ward. Respondents 5 and 6 were appointed as election observers for the said election. 3. It is the case of the petitioners that as per the election rules as Mayor, the 2nd respondent had to act as presiding authority for the election of Chairman of Ward Committee which was held on 15/4/2010, however, she was present there not as the Mayor but as a voter. In the said election petitioner 2 and respondent 7 were the candidates and 16 Councilors were present for voting. According to the petitioner the 4th respondent i.e. Municipal Secretary of the Corporation allowed the 2nd respondent to act as a presiding authority though she was one of the voters and the election was conducted in 3 the presence of the 4th respondent. Respondents 5 and 6 deliberately refused to act as election observers and permitted the 2nd respondent to pursue her political agenda in a biased and unlawful manner. They acted as silent spectators though the election was vitiated by the misconduct of the 2nd respondent. The misconduct of the 2nd respondent resulted in unfair election of the 7th respondent as Chairman of ward committee of F/Ward. 4. It is the case of the petitioners that both the candidates secured eight votes each in open voting by show of hands. Thus there was a tie. According to the petitioners in the case of a tie as per the election rules the presiding authority has to put two chits with name of the candidates in a lot and person chosen by majority of Councilors has to decide who will pick up the chit from the lot. This process is mandatorily required to be video recorded for transparency in election and to prevent malpractice. 5. It is the petitioners’ case that the 2nd respondent insisted that she would write the names on the chits and pick up one chit from the lot. Despite objections from Councilors with the silent connivance of respondents 4,5 and 6 the 2nd respondent wrote the names of two 4 candidates on two separate chit for drawing a lot under the rules but folded the chit containing the name of the 7th respondent. The chit was folded at the corner. This was done to facilitate her to pick up that folded chit. 6. The petitioners’ case further is that before picking up the chit, the 2nd respondent looked into the box, scrutinized the chits and selected the chit with folded corner. She held the chit in such a fashion so as to conceal the small corner fold within her fingers. This was done to elect the 7th respondent as Chairman because the 7th respondent belongs to the same political party to which the 2nd respondent belongs. 7. The process was video recorded and according to the petitioner the video recording of the election process shows the unfair conduct of the 2nd respondent. The petitioners have relied upon the video recording and prayed that the petitioners may be allowed to play the videographic compact disk at any place fixed by this court. To substantiate its case several photographs are annexed to the petition in support of the petitioner’s contention about the malpractice adopted by the 2nd respondent. The petitioners have 5 prayed that in view of the above this court should quash and declare the election of Chairman of ward committee of F/Ward held on 15/4/10 as vitiated by the misconduct of the 2nd respondent, who acted as presiding authority. The petitioners have further prayed that the 3rd respondent be directed to rearrange the drawing of lot. 8. We have heard learned counsel for the petitioner at some length. He has reiterated the contentions raised in the petition. We have also heard Mr. Singhvi, learned Senior Counsel for the Corporation. 9. In our opinion, the entire petition is based on disputed facts. Learned Counsel for the respondents have seriously disputed each and every averment and submission made in the petition. We are of the opinion, that it is difficult to examine, in our writ jurisdiction, whether the 2nd respondent folded the chit bearing the name of the 7th respondent at the corner, put it in the lot and picked up the same chit by identifying it with the fold at the corner. 10. We are requested to draw this conclusion on the basis of photographs and videographic compact disk. Setting aside of an 6 election is a serious matter and cannot be done in this manner, particularly when all contentions raised in the petition are seriously disputed by learned counsel for the respondents. In such a situation, in our opinion, evidence will have to be led. The petitioners will have to examine witnesses in support of their case and opportunity must be given to the respondents to cross-examine the witnesses. Admissibility of the photographs and the videographic compact disk in evidence will have to be decided. We cannot do this in our writ jurisdiction. For this purpose, if any other remedy is available to the petitioners in law, the petitioners may, if they are so advised, adopt it. 11. In view of the above, it is not possible for us to entertain this petition. The petition is dismissed. 12. We make it clear, however, that, we have not expressed any opinion on the merits of the case. Needless to say that, if any proceedings are adopted by the petitioners, the court seized of the same will deal with them independently and in accordance with law. (SMT. RANJANA DESAI, J.) (R. V. MORE, J.) 7