1 IN THE HIGH COURT OF BOMBAY AT GOA Writ Petition no.588 of 2006 Neeta Gurudas Natekar, major of age, married, Indian National, residing at 136D, Ansabhat, Mapusa, Bardez-Goa. ..... Petitioner V e r s u s 1) Vaishali Falari, major of age, married, Indian National, residing at Dattawadi, Mapusa, Bardez,Goa. 2) Rupa Anant Mishal, major of age, married, Indian National, residing at Ganeshpuri, Mapusa Housing board, Mapusa, Bardez-Goa. 3) Dashrath Redkar, Mamlatdar of Bardez and Returning Officer to General Elections to Mapusa Municipal Council for the years 2005-2010, Office of the Mamlatdar of Bardez, Near Mapusa Municipal Market, Morod, Mapusa, Goa. .... Respondents. Mr. Shivan Dessai, Advocate for the Petitioner. 2 Mr. V.P. Thali, Advocate for Respondent no.1. Respondent no.2 absent, though served. Mr. V. Rodrigues, Additional Government Advocate for Respondent no.3. Coram: A. P. Lavande, J. Date: 14th October, 2010. ORDER: By this petition, the petitioner challenges judgment and order dated 22/09/2006 passed by the District Judge,2, Panaji in Election Petition no.1/2005, dismissing the election petition filed by the petitioner under Section 22 of the Goa Municipalities Act, 1968 (“The Act” for short). 2. On 23/10/2005 the elections for electing the Councilors of the Mapusa Municipal Council for the period 2005-2010 were held. The petitioner and respondent no.1 contested for ward no.10 which was reserved for women. The counting of the votes took place on 24/10/2005 and respondent no.1 who got 646 votes was 3 declared elected. The petitioner secured 645 votes and respondent no.2 secured 260 votes. The petitioner applied for recounting of votes, which was refused by the Returning Officer. On 4/11/2005, the petitioner filed election petition before District Court, North Goa at Panaji challenging the election of respondent no.1 on several grounds set out in the election petition. Before the District Court evidence was led by both the parties. The District Judge-2 by judgment and order dated 22/9/2006 dismissed the election petition. 3. The petitioner moved application before this Court for early hearing of the writ petition which was dismissed. The petitioner preferred Special Leave to Appeal (Civil) No.23048 of 2008 before the Apex Court challenging the said order. The Apex Court disposed of the matter and requested this Court that the petition be disposed of as early as possible. 4 4. Perusal of the record discloses that thereafter the writ petition was taken up for hearing on several occasions, but the same could not be disposed of. 5. On 16/9/2010, the petitioner filed application for early hearing of the petition which was granted and the petition was fixed for hearing on 11/10/2010. 6. Mr. Dessai, learned counsel for the petitioner in support of the petition urged the following grounds: i) The District Judge ought to have directed re-counting of the votes since the petitioner had lost by one vote. ii) The petitioner had proved that there was bogus voting in the name of Premkumar Pojari who had already expired much prior to the date of elections. iii) Two voters namely, Laximan Naik and Subash S. Kolbal were impersonated and votes were cast 5 against their names. iv) The Returning Officer wrongly rejected 32 votes on the ground that the seal was affixed by the voters on the reverse side although the intention of the voters as to whom they had voted was clear from the ballot papers. 7. It is an admitted position that the election to Mapusa Municipal Council are scheduled on 31/10/2010. In view of this factual position, even if I find merit in the argument of Mr. Desai, the matter necessarily will have to be remanded to the District Judge for fresh adjudication after giving finding on the submissions made by Mr. Dessai. In such a eventuality, having regard to the short time available it would not be possible for the District Judge to dispose of the Election Petition prior to 31/10/2010 since the District Judge will have to decide the matter afresh after giving an opportunity of being heard to both sides. Obviously, such an exercise would not 6 be completed before 31/10/2010. 8. In view of the above position, I am of the considered opinion that this is not a fit case in which this Court should decide the matter on merits, since the writ that may be issued in favour of the petitioner would be futile. It is also well settled law that the High Court in exercise of jurisdiction under Article 226 of the Constitution of India would not issue a futile writ. On this ground alone the petition is liable to be disposed of. 9. It is really unfortunate that the writ petition filed by the petitioner challenging the election of respondent no.1 which was way back in the year 2006 on various grounds could not be finally decided on merits by this Court. 10. The writ petition is disposed of accordingly 7 with no order as to costs. A. P. Lavande, J. Ap/-