1 WRIT PETITION NO.: 10 OF 2011 Chandrakala W/o Dnyanoba Suryawanshi and another Versus The State of Maharashtra and others. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 10 OF 2011 *** 1. Chandrakala W/o Dnyanoba Suryawanshi Age: 33 years, Occu.: Household, And Surpanch, R/o Karwandi, Tal. Udgir, Dist. Latur. 2. Rohidas Pandurang Gambhire, Age: 38 years, Occu.: Upsurpanch, R/o as above. ... PETITIONERS. Versus 1. The State of Maharashtra. Through its Secretary, Rural Development Department, Mantralaya, Mumbai. 2. The Election Officer, Gram Panchayat, Karwandi, Tal: Udgir, Dist. Latur. 3. Gangadhar Nagorao Biradar, Age: 40 years, Occu.: Member of Gram Panchayat, R/o Karwandi, Tal. Udgir, Dist. Latur. ... RESPONDENTS. *** Mr. V. D. Gunale, Advocate for the Petitioners. Mr. D. R. Korde Patil, A.G.P. for Respondent/ State Authorities. Mr. D. B. Bhange, Advocate for Respondent No. 3. *** CORAM: B. P. DHARMADHIKARI, J. DATED:- 7th JANUARY, 2011. 2 WRIT PETITION NO.: 10 OF 2011 Chandrakala W/o Dnyanoba Suryawanshi and another Versus The State of Maharashtra and others. ORAL JUDGMENT: 1. Learned counsel for Petitioners seeks leave to delete Respondent Nos. 4 to 7. Leave granted. Necessary amendment to be carried out forthwith. 2. Heard. Rule. Looking to the nature of controversy, heard finally with consent of parties. 3. Shri Gunale, learned counsel appearing for Petitioners, has contended that in election petition a disputed question about alleged kidnapping of Respondent No.3 arose for consideration. The Additional Collector, who considered that grievance, as per provisions of Section 33 (5) of Bombay Village Panchayat Act, found that the issue cannot be gone into by him. Additional Commissioner, in further appeal, has accepted F.I.R., as proof of kidnapping and because Respondent No.3 voter was prohibited from attending the election meeting and that resulted in equality of votes requiring drawing of lots, found election of petitioners materially affected. According to learned counsel, the procedure 3 WRIT PETITION NO.: 10 OF 2011 Chandrakala W/o Dnyanoba Suryawanshi and another Versus The State of Maharashtra and others. followed is unsustainable. He further states that such a grievance cannot be looked into within the scheme of section 33 (5) and in any case when defeated candidates viz. respondent Nos. 5 and 7 have not questioned the election, the Respondent No.3 had no locus to file such petition. 4. Learned A.P. appearing for Respondent No. 2 and Advocate Mr. Bhange appearing for Respondent No.3 have supported the impugned order. They contend that respondent No.3 was deliberately kept away from the meeting which resulted into the situation in which drawing of lots became essential. The petitioners got elected because of this position and had respondent No.3 attended the meeting the drawing of lots would not have been essential. Advocate Mr. Bhange contends that the wife of Respondent No.3 has lodged F.I.R. immediately and in that F.I.R. she has named Petitioner No.2 specifically. In this view of the matter, according to the counsel, use of F.I.R. in election petition for limited purpose of finding out whether election stood 4 WRIT PETITION NO.: 10 OF 2011 Chandrakala W/o Dnyanoba Suryawanshi and another Versus The State of Maharashtra and others. materially affected or not is just and proper. 5. The adjudication of controversy is covered by section 33 (5) because it is a dispute in relation to election of Sarpanch and Upa-sarpanch of Gram Panchayat. Facts also show that because lots were drawn, both petitioners got elected. Thus, there would not have been equality of votes had respondent No. 3 attended the meeting and caste his vote in favour of any of the parties. It is also to be noted that defeated candidates i.e. Respondent Nos.5 and 7 have not challenged drawing of lots in that election. 6. The question, therefore, is whether Respondent No.3 voluntarily abstained from meeting or was forcibly kept away from meeting. The question is a disputed question of fact. Election was scheduled on 26th July, 2010 and the wife of Respondent No.3 has lodged report on 25th July, 2010. In that F.I.R. she has also mentioned the name of Petitioner No.2 and some other persons. This F.I.R. by itself has been relied upon by Additional Commissioner to hold that 5 WRIT PETITION NO.: 10 OF 2011 Chandrakala W/o Dnyanoba Suryawanshi and another Versus The State of Maharashtra and others. Respondent No.3 was kidnapped and, therefore, was forcibly kept away from the meeting. The Additional Collector found that the issue, whether there was kidnapping or not, cannot be gone into by him and, therefore, had dismissed the petition filed by Respondent No.3. 7. Respondent No.3 being a voter in election of Sarpanch and Upa-Sarpanch, has necessary locus in the light of section 33 (5) to file election petition. However, he has to establish that he was forcibly kept away from that meeting. This being a disputed question of fact, the same could have been decided only after parties were given opportunity to lead evidence. That has not been done in the matter. This disputed question of fact has not been dealt with in accordance with law by the Additional Collector or even thereafter by Additional Commissioner. I, therefore, find the adjudication affected by material irregularity in exercise of jurisdiction. 8. In this circumstance, impugned order dated 22nd December, 2010 passed by Additional Commissioner, Aurangabad in Appeal No.64 of 6 WRIT PETITION NO.: 10 OF 2011 Chandrakala W/o Dnyanoba Suryawanshi and another Versus The State of Maharashtra and others. 2010 is, therefore, quashed and set aside. The proceeding in Election Petition registered as 2010/GPN/CR/476 on the file of Additional Collector, Latur are restored back for taking fresh decision in accordance with law. The said authority shall permit parties to lead such evidence as they deem fit and proper to prove their respective stand. After such evidence is lead, the authority shall proceed further to adjudicate the controversy. As the matter pertains to election and there are serious allegations, Additional Collector, Latur is directed to decide the election petition at the earliest and in any case by 31st of May, 2011. Parties are directed to appear before that authority on 24th January, 2011 and to abide by his further orders in the matter. 9. Rule is made absolute. In the circumstances of the case, there shall be no order as to costs. [B. P. DHARMADHIKARI, J.] Dated:-07/01/2011. ans/10 7 WRIT PETITION NO.: 10 OF 2011 Chandrakala W/o Dnyanoba Suryawanshi and another Versus The State of Maharashtra and others. WRIT PETITION NO.: 10 OF 2011 Date of decision: 7th JANUARY, 2011. For approval and signature THE HONOURABLE SHRI JUSTICE B. P. DHARMADHIKARI. . Whether Reporters of local papers ... Yes may be allowed to see the judgment? . To be referred to the Reporter or not? ... No . Whether Their Lordships wish to see ... No the fair copy of the judgment? . Whether this case involves a substantial... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? . Whether it is to be circulated to the ... No Civil Judges? . Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE