1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION LETTER PATENT APPEAL NO.129 OF 2005 LETTER PATENT APPEAL NO.129 OF 2005 LETTER PATENT APPEAL NO.129 OF 2005 IN IN IN WRIT PETITION NO.4949 OF 2005 WRIT PETITION NO.4949 OF 2005 WRIT PETITION NO.4949 OF 2005 Suryakant Shankar Chavan ...Appellant Vs. Satish Namdeo Chavan & Ors. ...Respondents ----- Mr. M.L.Patil for Appellant Mr. Vijay Patil for Respondent No.1 Nr. R.V. More for Respondent No.6. CORAM: H.L.GOKHALE & CORAM: H.L.GOKHALE & CORAM: H.L.GOKHALE & SMT.R.S.DALVI,JJ. SMT.R.S.DALVI,JJ. SMT.R.S.DALVI,JJ. DATED: 10TH AUGUST, 2005 DATED: 10TH AUGUST, 2005 DATED: 10TH AUGUST, 2005 P.C. P.C. P.C. 1. Heard Mr. M.L. Patil for the Appellant. Mr. 1. Heard Mr. M.L. Patil for the Appellant. Mr. 1. Heard Mr. M.L. Patil for the Appellant. Mr. Vijay Patil appears for the Respondent No.1 and Mr. Vijay Patil appears for the Respondent No.1 and Mr. Vijay Patil appears for the Respondent No.1 and Mr. R.V.More appears for Respondent No.6. R.V.More appears for Respondent No.6. R.V.More appears for Respondent No.6. 2. This appeal seeks to challenge the order 2. This appeal seeks to challenge the order 2. This appeal seeks to challenge the order passed by a learned Single Judge on Writ Petition passed by a learned Single Judge on Writ Petition passed by a learned Single Judge on Writ Petition No.4949 of 2005 on 29th July, 2005. The operative No.4949 of 2005 on 29th July, 2005. The operative No.4949 of 2005 on 29th July, 2005. The operative part of that order is passed by consent. The learned part of that order is passed by consent. The learned part of that order is passed by consent. The learned Judge has specifically recorded in this impugned order Judge has specifically recorded in this impugned order Judge has specifically recorded in this impugned order as follows :- as follows :- as follows :- . ‘‘ The following Order is passed by . ‘‘ The following Order is passed by . ‘‘ The following Order is passed by consent:- consent:- consent:- . It is clear that the earlier Order of . It is clear that the earlier Order of . It is clear that the earlier Order of this Court dated 20th July, 2005 in Writ this Court dated 20th July, 2005 in Writ this Court dated 20th July, 2005 in Writ 2 Petition Nos.4731, 4732 and 4733 of 2005 is Petition Nos.4731, 4732 and 4733 of 2005 is Petition Nos.4731, 4732 and 4733 of 2005 is hereby recalled. Further the impugned Order hereby recalled. Further the impugned Order hereby recalled. Further the impugned Order dated 25th July, 2005 is hereby quashed and dated 25th July, 2005 is hereby quashed and dated 25th July, 2005 is hereby quashed and set aside. If the Petitioners in the earlier set aside. If the Petitioners in the earlier set aside. If the Petitioners in the earlier Petitions have any grievance regarding the Petitions have any grievance regarding the Petitions have any grievance regarding the election, they may avail of such remedy as may election, they may avail of such remedy as may election, they may avail of such remedy as may be available in the law.’’ be available in the law.’’ be available in the law.’’ 3. The controversy in this matter is regarding 3. The controversy in this matter is regarding 3. The controversy in this matter is regarding the election to the Gram Panchayat of Village the election to the Gram Panchayat of Village the election to the Gram Panchayat of Village Mahagaon, Taluka: Satara, District: Satara. The Mahagaon, Taluka: Satara, District: Satara. The Mahagaon, Taluka: Satara, District: Satara. The grievance of the Appellant was that the ward formation grievance of the Appellant was that the ward formation grievance of the Appellant was that the ward formation in the concerned village was not done correctly by the in the concerned village was not done correctly by the in the concerned village was not done correctly by the concerned Officer. Many of the people who are concerned Officer. Many of the people who are concerned Officer. Many of the people who are residing in a particular area were shown as voters in residing in a particular area were shown as voters in residing in a particular area were shown as voters in another area and another ward. As per the programme another area and another ward. As per the programme another area and another ward. As per the programme with respect to the formation of the wards, the with respect to the formation of the wards, the with respect to the formation of the wards, the objections were to be submitted by 6th July, 2005 and objections were to be submitted by 6th July, 2005 and objections were to be submitted by 6th July, 2005 and the Appellants herein didn’t submit their objections. the Appellants herein didn’t submit their objections. the Appellants herein didn’t submit their objections. The wards were ultimately finalised on 15th July, 2005 The wards were ultimately finalised on 15th July, 2005 The wards were ultimately finalised on 15th July, 2005 and according to the Appellant not correct. The and according to the Appellant not correct. The and according to the Appellant not correct. The Appellant herein therefore, filed Writ Petition Appellant herein therefore, filed Writ Petition Appellant herein therefore, filed Writ Petition No.4731 of 2005. Prayer (a) of this Petition was two No.4731 of 2005. Prayer (a) of this Petition was two No.4731 of 2005. Prayer (a) of this Petition was two fold, namely to direct the Tahasildar, Taluka: Satara fold, namely to direct the Tahasildar, Taluka: Satara fold, namely to direct the Tahasildar, Taluka: Satara to consider the objections raised by the Appellant to to consider the objections raised by the Appellant to to consider the objections raised by the Appellant to Schedule (B) (that is the draft formation of the Schedule (B) (that is the draft formation of the Schedule (B) (that is the draft formation of the wards.) and secondly to the preliminary voters list. wards.) and secondly to the preliminary voters list. wards.) and secondly to the preliminary voters list. The Appellant sought a direction that the objection be The Appellant sought a direction that the objection be The Appellant sought a direction that the objection be considered and accordingly the wards be formed and considered and accordingly the wards be formed and considered and accordingly the wards be formed and 3 preliminary voters’ list be corrected. The Respondent preliminary voters’ list be corrected. The Respondent preliminary voters’ list be corrected. The Respondent No.1 herein was not a party to that Petition. Only No.1 herein was not a party to that Petition. Only No.1 herein was not a party to that Petition. Only the Tahasildar was represented by the Assistant the Tahasildar was represented by the Assistant the Tahasildar was represented by the Assistant Government Pleader, even the State Election Commission Government Pleader, even the State Election Commission Government Pleader, even the State Election Commission was also not made party. The learned Judge was was also not made party. The learned Judge was was also not made party. The learned Judge was persuaded to pass order on that Petition on 20th July, persuaded to pass order on that Petition on 20th July, persuaded to pass order on that Petition on 20th July, 2005. It is seen that the only prayer which was 2005. It is seen that the only prayer which was 2005. It is seen that the only prayer which was pressed before him was that the Appellant herein had pressed before him was that the Appellant herein had pressed before him was that the Appellant herein had certain objections to the voters list, and those certain objections to the voters list, and those certain objections to the voters list, and those objections be considered. The learned Assistant objections be considered. The learned Assistant objections be considered. The learned Assistant Government Pleader made a statement that those Government Pleader made a statement that those Government Pleader made a statement that those objections will be considered before publishing the objections will be considered before publishing the objections will be considered before publishing the voters list. The Petition was disposed off voters list. The Petition was disposed off voters list. The Petition was disposed off accordingly. accordingly. accordingly. 4. The Respondent No.1 herein felt aggrieved by 4. The Respondent No.1 herein felt aggrieved by 4. The Respondent No.1 herein felt aggrieved by that decision and therefore, filed Writ Petition that decision and therefore, filed Writ Petition that decision and therefore, filed Writ Petition No.4949 of 2005 wherein he sought that this order be No.4949 of 2005 wherein he sought that this order be No.4949 of 2005 wherein he sought that this order be recalled. The Tahasildar had in the meanwhile recalled. The Tahasildar had in the meanwhile recalled. The Tahasildar had in the meanwhile proceeded to effect the procedure as sought by the proceeded to effect the procedure as sought by the proceeded to effect the procedure as sought by the Appellant and had issued a corrected list of wards and Appellant and had issued a corrected list of wards and Appellant and had issued a corrected list of wards and voters list on 25th July, 2005. The Respondent No.1 voters list on 25th July, 2005. The Respondent No.1 voters list on 25th July, 2005. The Respondent No.1 referred to this order of 25th July, 2005 in paragraph referred to this order of 25th July, 2005 in paragraph referred to this order of 25th July, 2005 in paragraph 7 of his Petition and pointed out that the order 7 of his Petition and pointed out that the order 7 of his Petition and pointed out that the order passed by the High Court had been misinterpreted and passed by the High Court had been misinterpreted and passed by the High Court had been misinterpreted and that the Officer had exceeded the jurisdiction and that the Officer had exceeded the jurisdiction and that the Officer had exceeded the jurisdiction and that the order of 25th July, 2005 was bad. that the order of 25th July, 2005 was bad. that the order of 25th July, 2005 was bad. 5. As we have noted earlier the Petition was 5. As we have noted earlier the Petition was 5. As we have noted earlier the Petition was 4 there after heard by the learned single Judge on 29th there after heard by the learned single Judge on 29th there after heard by the learned single Judge on 29th July, 2005. He noted in his impugned order that it July, 2005. He noted in his impugned order that it July, 2005. He noted in his impugned order that it was not brought to his notice that the election was not brought to his notice that the election was not brought to his notice that the election programme had already been announced. He specifically programme had already been announced. He specifically programme had already been announced. He specifically stated in paragraph 5 of his order passed on 29th stated in paragraph 5 of his order passed on 29th stated in paragraph 5 of his order passed on 29th July, 2005 that had this been disclosed to the Court July, 2005 that had this been disclosed to the Court July, 2005 that had this been disclosed to the Court, the Appellant would not have been entitled to the the Appellant would not have been entitled to the the Appellant would not have been entitled to the relief that was sought. It is therefore, that by relief that was sought. It is therefore, that by relief that was sought. It is therefore, that by consent the operative part of the impugned order was consent the operative part of the impugned order was consent the operative part of the impugned order was passed. passed. passed. 6. Mr. M.L. Patil, learned Counsel appearing 6. Mr. M.L. Patil, learned Counsel appearing 6. Mr. M.L. Patil, learned Counsel appearing for the Appellant submitted that the order passed by for the Appellant submitted that the order passed by for the Appellant submitted that the order passed by the learned single Judge on the first occasion on the learned single Judge on the first occasion on the learned single Judge on the first occasion on 20th July, 2005 was perfectly justified as also the 20th July, 2005 was perfectly justified as also the 20th July, 2005 was perfectly justified as also the order passed by the Tahasildar based thereon order order passed by the Tahasildar based thereon order order passed by the Tahasildar based thereon order dated 25th July, 2005. In his submission in the dated 25th July, 2005. In his submission in the dated 25th July, 2005. In his submission in the programme submitted by the Election Commission the programme submitted by the Election Commission the programme submitted by the Election Commission the finalisation of the wards was to take place by 15th finalisation of the wards was to take place by 15th finalisation of the wards was to take place by 15th July, 2005. Although the election programme was July, 2005. Although the election programme was July, 2005. Although the election programme was announced on 15th July, 2005 even as per that announced on 15th July, 2005 even as per that announced on 15th July, 2005 even as per that programme the voters list was to be made available on programme the voters list was to be made available on programme the voters list was to be made available on 20th July, 2005. He therefore, submitted that this 20th July, 2005. He therefore, submitted that this 20th July, 2005. He therefore, submitted that this gap between 15th July, 2005 and 20th July, 2005 was gap between 15th July, 2005 and 20th July, 2005 was gap between 15th July, 2005 and 20th July, 2005 was the period wherein the Appellant herein could approach the period wherein the Appellant herein could approach the period wherein the Appellant herein could approach the appropriate Court of law. It is during this the appropriate Court of law. It is during this the appropriate Court of law. It is during this period only when the first order was passed by the period only when the first order was passed by the period only when the first order was passed by the learned Judge on 20th July, 2005, and there was no learned Judge on 20th July, 2005, and there was no learned Judge on 20th July, 2005, and there was no reason for the learned Judge to recall the same. reason for the learned Judge to recall the same. reason for the learned Judge to recall the same. 5 7. Now as can be seen that the notification for 7. Now as can be seen that the notification for 7. Now as can be seen that the notification for the election was issued on 15th July, 2005. Mr.Vijay the election was issued on 15th July, 2005. Mr.Vijay the election was issued on 15th July, 2005. Mr.Vijay Patil learned Counsel appearing for Respondent No.1 Patil learned Counsel appearing for Respondent No.1 Patil learned Counsel appearing for Respondent No.1 has rightly pointed out that although the voters list has rightly pointed out that although the voters list has rightly pointed out that although the voters list was to be made available by 20th July, 2005 and the was to be made available by 20th July, 2005 and the was to be made available by 20th July, 2005 and the list was to be finalised as per the the programme by list was to be finalised as per the the programme by list was to be finalised as per the the programme by 25th July, 2005, in fact there is totally erroneous 25th July, 2005, in fact there is totally erroneous 25th July, 2005, in fact there is totally erroneous reference of Rule 3(4) and Rule 3(5) for that purpose. reference of Rule 3(4) and Rule 3(5) for that purpose. reference of Rule 3(4) and Rule 3(5) for that purpose. He drew our attention to Rule 3 of the Bombay Village He drew our attention to Rule 3 of the Bombay Village He drew our attention to Rule 3 of the Bombay Village Panchayat Election Rules, 1959. Rule 1 clearly states Panchayat Election Rules, 1959. Rule 1 clearly states Panchayat Election Rules, 1959. Rule 1 clearly states that it is the voters list or the electoral role for that it is the voters list or the electoral role for that it is the voters list or the electoral role for the State which is to be treated as authentic voters the State which is to be treated as authentic voters the State which is to be treated as authentic voters list for the village panchayat. Sub Rule 4 of Rule 3 list for the village panchayat. Sub Rule 4 of Rule 3 list for the village panchayat. Sub Rule 4 of Rule 3 only talks about the list to be kept open for public only talks about the list to be kept open for public only talks about the list to be kept open for public inspection. Sub Rule 5 does not provide for any inspection. Sub Rule 5 does not provide for any inspection. Sub Rule 5 does not provide for any finalisation of the list or notice therefor, implying finalisation of the list or notice therefor, implying finalisation of the list or notice therefor, implying seeking any objections thereto. Mr.Vijay Patil is seeking any objections thereto. Mr.Vijay Patil is seeking any objections thereto. Mr.Vijay Patil is quite right in pointing out that these stages in the quite right in pointing out that these stages in the quite right in pointing out that these stages in the election programme published by the commission it election programme published by the commission it election programme published by the commission it referred erroneously to the concerned Rules. In fact referred erroneously to the concerned Rules. In fact referred erroneously to the concerned Rules. In fact there is no provision for any such objection to the there is no provision for any such objection to the there is no provision for any such objection to the voters list in the relevant rule. As far as the voters list in the relevant rule. As far as the voters list in the relevant rule. As far as the formation of the wards is concerned that was formation of the wards is concerned that was formation of the wards is concerned that was undoubtedly finalised on 15th July, 2005. The undoubtedly finalised on 15th July, 2005. The undoubtedly finalised on 15th July, 2005. The Election programme was finalised on 15th July, 2005. Election programme was finalised on 15th July, 2005. Election programme was finalised on 15th July, 2005. Under the relevant rule there is a provision to file Under the relevant rule there is a provision to file Under the relevant rule there is a provision to file objections to the formation of the wards before the objections to the formation of the wards before the objections to the formation of the wards before the authority concerned. Those objections were filed by authority concerned. Those objections were filed by authority concerned. Those objections were filed by 6 the Appellant herein and it appears that they were not the Appellant herein and it appears that they were not the Appellant herein and it appears that they were not entertained by the Authority. There is no provision entertained by the Authority. There is no provision entertained by the Authority. There is no provision for any appeal against that decision. This being the for any appeal against that decision. This being the for any appeal against that decision. This being the position it can certainly be said on behalf of the position it can certainly be said on behalf of the position it can certainly be said on behalf of the Appellant that the only remedy available to him was to Appellant that the only remedy available to him was to Appellant that the only remedy available to him was to file a Writ Petition. But in any case such a remedy file a Writ Petition. But in any case such a remedy file a Writ Petition. But in any case such a remedy could not have been followed after election programme could not have been followed after election programme could not have been followed after election programme is announced on 15th July, 2005. The entire is announced on 15th July, 2005. The entire is announced on 15th July, 2005. The entire submission that any such objection can be raised to submission that any such objection can be raised to submission that any such objection can be raised to the formation of the ward based on erroneous the formation of the ward based on erroneous the formation of the ward based on erroneous references in the programme is unsustainable. That references in the programme is unsustainable. That references in the programme is unsustainable. That apart the order which is passed by the learned single apart the order which is passed by the learned single apart the order which is passed by the learned single Judge recalling the earlier order and setting aside Judge recalling the earlier order and setting aside Judge recalling the earlier order and setting aside the subsequent order of Tahasildar dated 25th July, the subsequent order of Tahasildar dated 25th July, the subsequent order of Tahasildar dated 25th July, 2005, is an order passed by consent as the learned 2005, is an order passed by consent as the learned 2005, is an order passed by consent as the learned single Judge recorded. This being the position the single Judge recorded. This being the position the single Judge recorded. This being the position the appeal cannot be entertained even on that ground. appeal cannot be entertained even on that ground. appeal cannot be entertained even on that ground. 8. For the reasons stated above we do not find 8. For the reasons stated above we do not find 8. For the reasons stated above we do not find any merit in the appeal on the submissions which are any merit in the appeal on the submissions which are any merit in the appeal on the submissions which are raised before us apart from the fact that since it is raised before us apart from the fact that since it is raised before us apart from the fact that since it is an appeal against the order by consent, it is an appeal against the order by consent, it is an appeal against the order by consent, it is otherwise also not maintainable. Appeal is dismissed. otherwise also not maintainable. Appeal is dismissed. otherwise also not maintainable. Appeal is dismissed. (H.L.GOKHALE,J.) (H.L.GOKHALE,J.) (H.L.GOKHALE,J.) 7 (SMT.R.S.DALVI,J.) (SMT.R.S.DALVI,J.) (SMT.R.S.DALVI,J.)