IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 3510 OF 2008 WRIT PETITION NO. 3510 OF 2008 WRIT PETITION NO. 3510 OF 2008 Shri Vijay Ramchandra Somwanshi. ... Petitioner. V/s. Collector, Pune and others. ... Respondents. A.P.Kulkarni for the petitioner. V.S.Masurkar, G.P. with A.I.Patel, A.G.P. for respondent Nos.1 to 3. U.B.Nighot for respondent No.4 S.B.Shetye for respondent No.7. CORAM: V.C.DAGA and CORAM: V.C.DAGA and CORAM: V.C.DAGA and MRS.MRIDULA BHATKAR, JJ. MRS.MRIDULA BHATKAR, JJ. MRS.MRIDULA BHATKAR, JJ. DATED: 25th February 2009. DATED: 25th February 2009. DATED: 25th February 2009. P.C.: P.C.: P.C.: ---- ---- ---- . Heard. . Perused petition. The Facts : The Facts : The Facts : --------- --------- --------- 2. The petitioner in this petition was elected as Member of respondent No.5 - Grampanchayat. The election was challenged before the Collector, Pune under the provisions of the Bombay Village Panchayat Act, 1958 ("Act" for short) 3. The Collector, Pune, after hearing the parties to the election dispute was pleased to disqualify the petitioner vide his order dated 26th September, 2006. 4. Being aggrieved by the aforesaid order of the Collector, the petitioner preferred a statutory appeal before the Additional Commissioner, Pune, Division, Pune being Appeal No.87/2006. The appeal was filed along with application for stay, however, the prayer for stay was rejected by the Additional Commissioner vide his order dated 16th October, 2006. 5. Being aggrieved by the rejection of the prayer for interim stay, petitioner preferred Writ Petition No.7510/2006 before this Court. Initially, ad-interim stay pending admission of the said writ petition was granted but, consequently, the petition came to be dismissed by vide order dated 6th July, 2007. 6. The petitioner did not challenge the order of dismissal of writ petition before the higher court, with the result, the order of this Court dated 6th July, 2007 passed in Writ Petition No.7510/2006 affirming the order rejecting interim relief passed by the Additional Commissioner, Pune Division, Pune became final and conclusive. - 3 - 7. The appeal was heard by the Additional Commissioner on merits on 14th February, 2007. It appears that the Additional Commissioner, who had heard the subject appeal, was transferred before appeal could be decided by him. As such fresh hearing was accorded to the parties on 4th October, 2007 and the appeal was closed for orders. During the pendency of the aforesaid appeal which was awaiting final judgment, fresh elections for the post of Member of respondent No.5- Grampanchayat took place and respondent No.4 (who is added as party respondent for the first time before this Court) was declared as elected. It appears that after the declaration of the results of the by-election on 7th October, 2007, the Additional Commissioner decided appeal vide his order dated 19th November, 2007 and set aside the order of the Collector, Pune disqualifying the petitioner under section 14(g) read with section 16(2) of the Act being bad and illegal. 8. In the backdrop given hereinabove, now, the petitioner has come up with the present writ petition before this Court seeking direction against respondent No.5 - Grampanchayat to allow him to work as its member and further to restrain respondent No.4 from acting as an elected member of the Grampanchayat. A prayer is - 4 - also made in this petition to set aside the resolution of No Confidence Motion dated 31st May, 2008 since the petitioner was not allowed to take part on that motion. 9. The factual matrix sketched hereinabove would go to show that respondent No.4 was elected on 7th October, 2007. On the date when the by-election took place, the disqualification of the petitioner was in operation since the order of the Collector was not stayed in appeal. Consequently, the by-election proceeded further and culminated in the election of respondent No.4 on 7th October, 2007. The appeal filed by the petitioner was allowed vide order dated 19th November, 2007 by the Additional Commissioner, Pune Division, Pune. Now, the petitioner is seeking implementation of this order passed in appeal and to set aside by-election of the respondent No.4 herein. Consideration : Consideration : Consideration : ------------- ------------- ------------- 10. Having heard learned counsel for the petitioner, none of the reliefs claimed in the petition could be granted for the simple reason that the subsequent election or rather by-election, which took place on 7th October, 2007, was neither made subject matter of challenge in appeal nor it was made subject - 5 - to the result of the appeal. As such there was no impediment in holding by-election. Secondly, on the date when the election took place, the petitioner was under disqualification since the order of the Collector was not stayed, hence no fault can be found by the process of by-election. Thirdly, the petitioner was well aware of the fact that his appeal is pending for judgment and interim stay was refused. He was also aware of the fact that by-election has taken place. It was, thus, expected on his part to bring this fact on record in appeal and to the notice of the Additional Commissioner, who would have taken into account the subsequent event leading to the by-election resulting in creating third party rights. As a matter of fact, with the declaration of the the results of the by-election, the appeal had become infructuous. The infructuous appeal could not have been allowed by the Additional Commissioner. Thus, the order of which implementation is being sought cannot be implemented being an order passed in the infructuous appeal. The writ jurisdiction being discretionary, this Court would be justified in refusing to exercise extra-ordinary discretion in favour of the petitioner, when petitioner is responsible for placing himself in the situation in which he is placed (see Venkateswara v. Govt. of Venkateswara v. Govt. of Venkateswara v. Govt. of - 6 - A.P. A.P. A.P., AIR 1966 SC 828, para-17). 11. In order to implement the order of the Additional Commissioner dated 19th November, 2007, no writ can be issue. Direction to implement the order of the appeal would result in setting aside the by-election, which was never subject matter of dispute. It would also amount to enforcement of the order passed in an appeal, which was already rendered infructuous in view of the by-election held on 7th October, 2007. No such writ can be issued. 12. Be that as it may, in view of the subsequent event and the subsequent election not being subject matter of the litigation and the respondent No.4 not being the party to the appeal, he would not be bound by the order in appeal. Consequently, no relief as on date in favour of the petitioner can be granted. 13. In the result, petition is dismissed being without any substance. No order as to costs. (MRIDULA BHATKAR, J.) (V.C.DAGA, J.) (MRIDULA BHATKAR, J.) (V.C.DAGA, J.) (MRIDULA BHATKAR, J.) (V.C.DAGA, J.)