1 wp1337.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.1337 OF 2010 Shaikh Wahidabano D/o. Kasimsaheb : Petitioner V/s. Bande Rekha Ravindra & Ors. : Respondents .... Mr.A.N.Maniyar for the petitioner. Mr.V.B.Naik for respondent nos.6 & 7. Mr.P.S.Dani i/b. Mr.P.B.Kulkarni for respondent no.5. ..... CORAM : D.D. SINHA AND MRS.MRIDULA BHATKAR,JJ. DATE : JULY 27, 2010. P.C.: Heard the learned counsel for the petitioner. 2. This Writ Petition is directed against the order dated 19.8.2009 passed by the Joint Civil Judge, Senior Division, Solapur, whereby Election Petition No.5 of 2008 filed by the petitioner came to be dismissed. The counsel for the petitioner has submitted that general election to the Municipal Corporation, Solapur, was held on 1.2.2007. The petitioner contested the election from ward no.45 which was reserved 2 wp1337.10 for woman candidate. It is submitted that the petitioner and the respondent no.5 and others contested the election from ward no.45. 3. Counsel for the petitioner has submitted that the grievance of the petitioner is in respect of the manner in which counting of votes was conducted by the Counting Officer for ward no.45. It is submitted that the petitioner or her representative has a right in law to remain present at the time of counting of votes by the Counting Officer. It is submitted that at the relevant time, though the petitioner was within the vicinity of the place where the counting of votes for ward no.45 took place, the petitioner was not intimated or called by the Counting Officer to remain present at the time of counting of votes. The learned counsel, therefore, contended that the entire counting of votes for ward no.45 took place behind the back of the petitioner as well as her representative. The learned counsel, therefore, contended that the procedure undertaken by the Counting Officer for counting of votes, in the absence of the petitioner, is a serious irregularity which materially affects the election of the candidate from ward no.45 and, therefore, the petitioner filed an Election Petition under section 16 of the Bombay Provincial Municipal Corporation Act, 1949. 3 wp1337.10 4. It is contended that it was obligatory on the part of the Counting Officer to inform the petitioner to remain present at the time of counting of votes. Failure on the part of the Counting Officer to inform the petitioner to remain present at the time of counting of votes creates a serious doubt about the process of counting of votes undertaken by the Counting Officer. It is, therefore, contended that the manner in which the process of counting of votes was undertaken by the Counting Officer being irregular, it affects the election materially and, therefore, the Election Tribunal is not justified in holding that the petitioner fails to establish this irregularity so as to affect the election materially. The learned counsel, therefore, contended that the impugned order is bad in law. 5. The learned counsel for the respective respondents supported the impugned order and contended that the Election Tribunal considered the evidence on record as well as the law applicable and it is only thereafter dismissed the Election Petition by giving cogent reasons based on the evidence adduced by the parties and, therefore, the impugned order is sustainable in law. 6. We have considered the contentions canvassed by the respective 4 wp1337.10 counsel and perused the impugned order. In paragraph 22 of the impugned order, the Tribunal recorded the finding based on the evidence adduced by the parties and observed that in their evidence neither the petitioner nor her representative has stated that they were prevented from remaining present at the counting booth or were prohibited from entering the hall where the counting was going on. The petitioner has stated in her cross-examination that the analysis of counting process and its results were announced from time to time on loud speaker. The petitioner or her representative has nowhere stated that as a result of faulty counting, the result of the election of ward no.45 was seriously affected. The petitioner though stated that there was malpractice in the entire counting process and she has doubt in her mind in this regard, however, mere doubt or suspicion cannot take the place of proof in the eyes of law. The petitioner has not specifically made any allegation nor adduced any evidence to that effect except expressed doubt, for declaring the election of ward no.45 as null and void. 7. There is no dispute that the candidate or her representative has a right to remain present at the time of counting process. However, if they chose not to remain present, it does not affect either the counting process nor affects the results of the election materially. In the instant case, 5 wp1337.10 considering the evidence on record, the Tribunal has observed that it was not the case of the petitioner that either the petitioner or her representative was obstructed or prevented from entering the hall where the counting was going on. Similarly, the petitioner did not make any written complaint to the concerned Officer. 8. In the circumstances, the conclusion arrived at and the findings recorded by the Tribunal, in our view, are just and proper and needs no interference. Writ Petition is dismissed. (D.D. SINHA, J.) (MRS.MRIDULA BHATKAR,J.)