1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.63 OF 2010 IN WRIT PETITION NO.540 OF 2010 Yogesh s/o Hansraj Mahale ... APPELLANT VERSUS Shivaji s/o Namdeo Dahite and others ... RESPONDENTS ..... Shri P.D. Bachate, Advocate for the appellant Shri V.D. Hon, Advocate for respondent No.1. Shri S.T. Shelke, Advocate for respondent No.5. ..... CORAM: P.V. HARDAS & N.D. DESHPANDE, JJ. DATED: 1st July, 2010 PER COURT : 1. This Letters Patent Appeal has been filed by the appellant against the order of the learned Single Judge, dated 2.2.2010 in Writ Petition No.540/2010, granting interim relief in a petition filed by the present respondent. 2. Writ Petition No.540/2010 came to be filed by the present respondent No.1 who was a returned candidate, who had been duly elected from Block No.30, Pimpalgaon (Bk.), Taluka Sakri, District Dhule. The election of the respondent No.1 herein came to be challenged by the present appellant by filing Election Petition No. 2 1/2008. The trial Court, by order dated 5.1.2010, below Exh. 5, filed in Election Petition, allowed that application in respect of calling the record and proceedings of the constitution concerned including electronic voting machine EVM-3 and other papers pertaining to the counting. The order of the trial Court i.e. the Election Tribunal, came to be challenged before the learned Single Judge in the said Writ Petition. The learned Single Judge has issued Rule and has stayed the order passed by the Election Tribunal. 3. We had issued notice of this Letters Patent Appeal to the respondents and Shri S.T. Shelke, learned counsel appearing on behalf of the fifth respondent i.e. the Election Commissioner has tendered before us a certificate issued by the Tahsildar, Sakri, in which it is stated that the electronic memory chip and other documents pertaining to the election in question are preserved in the strong room. In that light of the matter, therefore, according to us, it would be appropriate to direct the respondent No.5 to ensure that there is no tampering with the electronic memory chip and the other documents in the event those documents are required by the Election Tribunal. 4. Since the learned Single Judge has given reason as to why the learned Single Judge felt that stay was necessary as if no stay had been granted, the Writ Petition filed by the petitioner therein would have been rendered infructuous. However, to ensure that the interests of both the parties are protected, according to us, it would be sufficient 3 if we direct respondent No.5 to ensure that the record is preserved and made available as and when and if required by the Court. 5. We thus see no merit in the present Letters Patent Appeal, which is dismissed, however, with the direction to respondent No.5 to ensure that the electronic memory chip and the other documents relating to the election in question are preserved till such time as the Court requires them. 6. Letters Patent Appeal is accordingly dismissed with the aforesaid directions. (N.D. DESHPANDE, J.) (P.V. HARDAS, J.) fmp/wp5724.10 4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL APPLICATION NO.8108 OF 2010 IN LETTERS PATENT APPEAL NO.63 OF 2010 IN WRIT PETITION NO.540 OF 2010 Yogesh s/o Hansraj Mahale ... APPLICANT VERSUS Shivaji s/o Namdeo Dahite and others ... RESPONDENTS ..... Shri P.D. Bachate, Advocate for the applicant Shri V.D. Hon, Advocate for respondent No.1. Shri S.T. Shelke, Advocate for respondent No.5. ..... CORAM: P.V. HARDAS & N.D. DESHPANDE, JJ. DATED: 1st July, 2010 PER COURT : 1. In the light of dismissal of the Letters Patent Appeal, this application does not survive and is accordingly dismissed. (N.D. DESHPANDE, J.) (P.V. HARDAS, J.) fmp/wp5724.10