1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 8523 OF 2010 1. Dinkar s/o. Asaram Jadhav, Age 55 yrs., Occu. Agriculture, R/o. Waregaon, Tal. Phulambri, Dist. Aurangabad. 2. Pandit s/o. Uttamrao Jadhav, Age 56 yrs., Occu. Agri., R/o. As above. 3. Sau. Mandabai w/o. Shivaji Jadhav, Age 40 yrs., Occu. Household, R/o. As above. ....Petitioners. Versus 1. The State of Maharashtra, Through its Secretary, Rural Development Department, Mantralaya, Mumbai. 2. The State Election Commission, Through its Secretary, Madam Kama Road, Mumbai. 3. The District Collector, Aurangabad. 4. The Tahsildar, Phulambri, Tal. Phulambri, Dist. Aurangabad. 5. The Returning Officer for elections To Sarpanch and Upa-Sarpanch of The Grampanchayat, Waregaon, Tal. Phulambri, Dist. Aurangabad. 6. Satish s/o. Shivlingappa Thenge, Age Major, Occu. Agri., R/o. Waregaon, Tal. Phulambri, Dist. Aurangabad. 2 7. Eknath s/o. Dashrath Dhating, Age Major, Occu. Agri., R/o. As above. ....Respondents. Mr. S.S. Thombre, Advocate for petitioners. Mrs. A.V. Gondhalekar, A.G.P. for respondent Nos. 1, 3 and 5. Mr. S.T. Shelke, Advocate for respondent No. 2. Mr. S.D. Hiwrekar, Advocate for respondent Nos. 6 and 7. CORAM : B.R. GAVAI AND A.A.SAYED, JJ. DATED : 1st October, 2010. ORAL JUDGMENT : [ PER B.R. GAVAI, J.] 1. Rule. Rule made returnable forthwith. Heard by consent. 2. The petition arises out of peculiar facts and circumstances. The elections to the Gram Panchayat of village Waregaon were held on 22.8.2010. The election results were declared on 23.8.2010. 3. The petitioners were declared to be elected on 23.8.2010. It appears that one Rajendra Giridhar Jadhav has approached this Court by way of writ petition no. 7846/2010, alleging therein that there was defect in the electronic voting machine and therefore, sought fresh election from ward No. 2. 4. The said writ petition was listed before this Court on 31st of August 2010, wherein an order of statusquo came to be passed. It further 3 appears that the said matter was adjourned from time to time. In the intervening period, the notices for holding election to the posts of Sarpanch and Up-Sarpanch of Grampanchayat, were issued on 10th September 2010. The said meeting was held on 12th of September 2010, wherein only six members out of nine, were present and the present respondent Nos. 6 and 7 came to be elected unanimously. Noticing that the respondent Nos. 6 and 7 were elected unanimously, the present petitioners have approached this Court, challenging the said elections. 5. It is the contention of the petitioners that the order in Writ Petition No. 7846/2010 was obtained by said Rajendra Giridhar Jadhav in collusion with respondents 6 and 7. He submits that though exparte interim order was passed, the matter was adjourned from time to time and in the intervening period, the elections were held, depriving the petitioners from participating in the said elections. It is submitted that only six members were issued the notices of the meeting of village Panchayat for holding the elections of Sarpanch and Up-Sarpanch. Shri. Thombre, learned counsel for the petitioners submits that it is in the interest of justice that the elections held on 12th of September 2010 needs to be quashed and set aside. 6. Shri. Hiwrekar, learned counsel for respondent Nos. 6 and 7 raises a preliminary objection in respect of tenability of the petition. He submits that the petitioners have alternate and efficacious remedy 4 available, therefore, the petition should not be entertained in exercise of extraordinary jurisdiction of this Court under Article 226 of the Constitution. In the alternate, he submits that six members of Grampanchayat were already issued notices and as such, in view of sub- section (4) of section 10 of the Bombay Village Panchayat Act, since 2/3 members were available in the meeting, no error could be found with the meeting for electing the Sarpanch and Up-Sarpanch. 7. Undisputedly, this Court had passed an order of statusquo on 31st of August 2010 in Writ Petition No. 7846/2010. It is, thus, clear that in view of the statusquo order passed by this Court, it was not permissible to the respondent/authorities to conduct the elections of Sarpanch and Up-Sarpanch. In any case, if the respondent/authorities wanted to proceed in the matter, they ought to have sought leave of the Court. It is also on account of erroneous interpretation by Tahsildar of the order passed by this Court, the present petitioners were not served with the notice dated 10th of September 2010, conveying the meeting on 12th of September 2010. It is not in dispute that only six members were issued the notices of the said meeting. It is settled principle of law that the act of Court shall prejudice no one. The reliance in this respect could be placed on the various judgments of the Apex Court viz. (1) Mohammed Gazi v. State of M.P. and others, AIR 2000 Supreme Court 1806, (2) Gursharan Singh and others Vs. New Delhi Municipal Committee and others, AIR 1996 Supreme Court 1175 and (3) Raj Kumar Dey and 5 others Vs. Tarapada Deay and others, AIR 1987 Supreme Court 2195. The Facts in the present case are somewhat similar to that of Mohammed Gazi cited supra. In the said case, though the appellant was declared as highest bidder, he was prevented from taking the benefit of acceptance of his bid by stay order obtained by previous tenderer in writ petition to which the appellant was not a party. In the said case, the Apex Court clearly held that the act of the Court shall prejudice none and therefore, allowed the appeal, challenging the order passed by the learned Division Bench of High Court and restored the order passed by the learned Single Judge, which had granted benefit in favour of appellant therein. In the present case, it is clear that only on account of incorrect interpretation of the statusquo order of this Court, the meeting of the Grampanchayat was held for electing Sarpanch and Up-Sarpanch and also on account of erroneous interpretation, the notice of the meeting was not issued to the petitioners. It is also pertinent to note that this Court vide order dated 30th of September 2010 has already dismissed the Writ Petition No. 7846/2010, on the ground that the petitioner therein has an alternate, efficacious remedy available. It is thus clear that on account of the order of statusquo passed by this Court in the said petition or on an erroneous interpretation placed by the authorities, the petitioners have been deprived of their valuable rights of contesting in the elections of Sarpanch and Up-Sarpanch of Grampanchayat Waregaon. In any case, the elections held on 12.9.2010 are in violation of the order of the statusquo passed by this Court. 6 8. In that view of the matter, we are inclined to allow the petition. The proceedings of the meeting dated 12th of September 2010 and consequently, election of respondent Nos. 6 and 7 as Sarpanch and Up- Sarpanch are quashed and set aside. The respondent Tahsildar shall hold the fresh meeting in accordance with law for conducting the elections of Sarpanch and Up-Sarpanch of village Panchayat of Waregaon. Authenticated copy of this order be supplied to the learned A.G.P. to act upon. [ A. A. SAYED ] [ B. R. GAVAI ] Judge Judge ssc/wp8523.10