: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5398 OF 2003 Shri Anandrao Pilappa Patil, ) age about 55 years, Occupation: ) Advocate & Agriculture r/o. ) Mandrul-Kole, Tal. Patan, Dist. ) Satara. ) ... Petitioner Versus 1. Mr. Madhukar Shankarrao Patil) age about 45 years,Occupation) Agriculture & Business, r/o. ) Mandrul-Kole, Tal. Patan, ) Dist. Satara. ) 2. Mr. Vasant Tanaji Kadam, ) age about 35 years, R/at, ) Salave, Tal. Patan, Dist. ) Satara. ) 3. Returning Officer, ) Zilla Parishad/Panchayat ) Samiti, Tal. Patan, Dist. ) Satara. ) 4. The Collector, ) Satara. ) ... Respondents Mr. Vijay Patil with Mr. Dilip Bodake for the petitioner. Mr. Kumbhakoni with Mr. S.S. Patwardhan for respondents. CORAM: CORAM: CORAM: SMT. RANJANA DESAI, J. SMT. RANJANA DESAI, J. SMT. RANJANA DESAI, J. DATED: DATED: DATED: 15TH MARCH, 2005. 15TH MARCH, 2005. 15TH MARCH, 2005. ORAL JUDGMENT:- 1. In this petition, the petitioner has challenged the judgment and order dated 8/7/2003 passed by the District Court, Satara Division at Karad, in Election Petition No.5 of 2002, dismissing his election petition. : 2 : 2. The petitioner and respondents 1 and 2 were contesting candidates for election of Panchayat Samiti of 28 Sanbur electoral college of Patan. Respondent 3 is the Returning Officer, Satara. Respondent 4 is the Collector, Satara, who had conducted the election. The voting took place on 17/2/2002. After counting of votes, on 18/2/2002, the result was declared and respondent 1 was declared elected by 186 votes. The petitioner challenged the said election in Election Petition No.5 of 2002. 3. The petitioner in Election Petition No.9 of 2002 challenged the election of Dhebewadi 27 electoral college. He and respondent 1 therein were the contesting candidates from Dhebewadi 27 electoral college. Respondent 1 therein was declared elected by 1568 votes. Since both the petitions arose out of similar facts and contained similar grounds, the District Court disposed them of by a common judgment. That judgment is impugned in this petition only by the petitioner in Election Petition No.5 of 2002 and, therefore, it is necessary to refer to only his case and submissions. 4. According to the petitioner, he is the resident of village Mandrul Kole. Dhebewadi is one electoral division (Gat) for Zilla Parishad election. For the purpose of Panchayat Samiti, it is divided into two electoral colleges (Gan.). Sanbur 28 and Dhebewadi 27 were the two electoral collages of Dhebewadi. On : 3 : 18/11/2001, the list of electoral colleges was declared. The date of raising objections was declared as 7/12/2001. According to the petitioner, on 24/12/2001, there was final publication in respect of division of electoral colleges and electoral divisions in the block of Patan Panchayat Samiti. One member had to be elected from Sanbur electoral college. According to the petitioner, the total voters for Sanbur electoral college were 13,517. From Dhebewadi 27 electoral college also one candidate had to be elected and total voters from that electoral college were 13,543. Three polling stations were declared for village Mandrul Kole. Out of three polling centres, polling centres 241 and 242 were included in Sanbur 28 electoral college and third polling centre 246 was included in Dhebewadi electoral college 27. The voters of polling centre 246 were required to caste their votes from electoral college 27. They were not included in Sanbur electoral college 28. This situation was in existence till 24/12/2001 when the final list of electoral colleges was published. 5. According to the petitioner, one day prior to the election, polling centre 246 was included in Sanbur electoral college 28. After getting to know about this, the petitioner raised objections and brought this fact to the notice of the concerned officers. The petitioner was informed that the change is made by superior officers. It is the case of the petitioner that 733 voters of 246 Dhebewadi electoral college did not caste their votes : 4 : from electoral college 27. On the contrary, they caste their votes from electoral college 28 though they had no right to caste their votes from electoral college 28. Therefore, that election is illegal. Because the said voters did not caste their votes from electoral college 27, that election is also illegal. The net result of this is that the members elected from electoral college 27 and 28 are illegally elected. 6. According to the petitioner, after the declaration of results, he came to know that one person by name Sambhaji Ganpati Lohar, resident of Mandrul Kole, Taluka Patan had submitted an application to the Additional Collector, Satara i.e. Election Returning Officer of Zilla Parishad and Panchayat Samiti, Satara after 7/12/2001, requesting him to include polling centre 246 Dhebewadi from electoral college 27 in electoral college 28. According to the petitioner, this letter itself makes it clear that till the previous day of the polling, polling centre 246 was not included in Sanbur electoral college. The election process is thus vitiated on account of illegalities and irregularities and the corrupt practices adopted by respondent 1 and, therefore, the election to electoral college Sanbur deserves to be set aside. 7. The petitioner has made two fold prayers. The first prayer is that the votes of voters who caste their votes in polling centre 246 Dhebewadi be separated and the rest of the votes be recounted and if that is not feasible, : 5 : the election be set aside and fresh election of the said electoral college be ordered. He has also prayed that the voters of 246 Dhebewadi electoral college be restrained from casting their votes in favour of the candidates who are contesting election from 28 Sanbur electoral college. 8. Respondent 1 filed his written statement. According to him, the date 24/12/2001 was not the date of final publication as required under section 58(1A) of the Maharashtra Zilla Parishads and Panchayat Samitis Act 1961 (for short, "the said Act"). It was the date on which, as per election programme, information mentioned at serial no.9 was to be published. It was determined by the Presiding Officer and not by the Election Commission. Some powers are delegated under section 9-A of the said Act to the District Collector. Under the Maharashtra Zilla Parishads and Panchayat Samitis (Electoral Colleges and Conduct of Election) Rules 1962 (for short, "the said Rules"), the Returning Officer is appointed by the District Collector. He is the District Collectors’ assistant. Final date of publication under section 58(1A) of the said Act is to be determined by the Election Commission and not by the Returning Officer. He is not empowered to take final decision. In the election programme, the Election Commission had directed that the proposal in respect of Prarup Prabhag Rachana be prepared and sent to the Election Commission. After receipt of objections, final decision was to be taken by the : 6 : Election Commission and not by the Returning Officer because he is not empowered to take such a decision. 9. According to respondent 3, three polling centers were sanctioned for village Mandrul Kole. While publishing the voters list, polling centre 246 was shown as being the polling centre for Dhebewadi electoral college 27 by mistake. In fact, the voters of Dhebewadi 246 are residents of village Mandrul Kole and are part and parcel of its Grampanchayat. At the time of formation of electoral colleges, map was prepared and sent to the Election Commission. The entire Mandrul Kole village was shown in Sanbur 28 electoral college. According to respondent 1, the Sarpanch of village Mandrul Kole submitted an application supported by Grampanchayat resolution to the Returning Officer for change in the polling centre. It was forwarded to the District Collector, Satara. The District Collector, Satara, took the distance and inconvenience of voters into consideration, made the necessary change in the polling center and published it on 8/2/2002. This change was effected more than 7 days prior to polling and all concerned were aware about it. It was a mistake which could be rectified under Rules 7 and 9 of the said Rules. Respondent 1 further contended that polling center 246 has no concern with Dhebewadi Grampanchayat. Voters of polling centre 246 have legally caste their votes. 10. Respondent 1 further contended that the voters list : 7 : is prepared for the assembly election. It is also used for Panchayat Samiti and Zilla Parishad elections. At the time of assembly election, electoral division and colleges are not divided. They stand as they are. For the purpose of Panchayat Samiti election, while publishing the voters’ list the names of voters of polling centre 246 were included in electoral college 27 and not in electoral college 28. This mistake was rectified under rule 7. Respondent 1 further contended that the petitioner’s remedy is to file election dispute under section 58 of the said Act and not by way of the instant petition. 11. Respondent 1 urged that no election petition is filed in connection with Dhebewadi electoral division which is finally declared. If the voting of polling centre 246 is declared void, it would amount to withdrawing the rights of the said voters. That cannot be done. If the alternative prayer of the petitioner of separating the votes, is granted that would be against the principle of secrecy of voting. On all these counts, respondent 1 urged that the petition be dismissed. 12. Respondent 2 filed a pursis and contended that he has accepted the election result declared by respondent 3. He urged that the petition be dismissed. 13. Respondent 3 filed his written statement. He contended that Dhebewadi is one electoral division (gat) : 8 : and for the purpose of Panchayat Samiti, it is divided into two electoral colleges (gan). On 24/12/2001, there was final publication in respect of division of electoral colleges and electoral divisions in the Patan Panchayat Samiti Block. Accordingly, division stating the area, number of total seats, and reservation, etc. was published. It was a declaration of electoral colleges. It mentioned the names of villages which shall come within the electoral colleges. In that declaration, village Mandrul Kole, Khurd and village Mandrul Kole Bk were included in Sanbur electoral college. The said declaration was made final on 24/12/2001. Request for change of polling center was received from Grampanchayat Mandrul Kole. It was found to be genuine and, hence, change was effected and declared more than 7 days prior to the date of polling as per the said Rules. Respondent 3 denied that he acted under political influence. 14. Respondent 4, the District Collector, Satara adopted the written statement of respondent 3. 15. The petitioner examined himself. The petitioner also examined Ms. Vidyut Ashok Varkhedkar, the Tahsildar of Patan and one Baburao Kondiba Shinde. Respondent 1 examined one Somnath Pandit Jangam. Arvind Baba Koli, who was the Returning Officer for Zilla Parishad and Panchayat Samiti elections was also examined. Respondents 2 to 4 did not lead any oral evidence. The : 9 : petitioner, respondent 1 and respondents 2 to 4 produced certain documents. 16. The trial court dismissed the petition holding, inter alia, that the petitioner had failed to prove that electoral colleges 27 and 28 of electoral division 14 Dhebewadi were finally declared on 24/12/2001 having votes 13,543 and 13,517 respectively. It was further held that the petitioner had failed to prove that the order of the Returning Officer in respect of the polling station 246 Dhebewadi dated 8/2/2002 is illegal. It was further held that the petitioner had failed to prove that polling centre 246 was illegally included in electoral college 28 from electoral college 27 after the final declaration. The trial court held that the allegation regarding corrupt practice was not proved. The said judgment is challenged before me. 17. I have heard Mr. Patil, the learned counsel appearing for the petitioner and Mr. Kumbhakoni the learned counsel appearing for the respondents, at great length. With the assistance of the learned counsel, I have perused the record. 18. Mr. Patil, the learned counsel for the petitioner took me through the relevant provisions of the said Act and the said Rules. He contended that this is a case of flagrant violation of basic legal principles underlying : 10 : and governing elections. He submitted that the trial court has misinterpreted and misconstrued the relevant provisions of the said Act and the said Rules causing grave injustice to the petitioner. He pointed out that section 9 of the said Act provides for constitution of Zilla Parishads. Section 12 makes provision for division of districts into electoral divisions and under section 58, each electoral division in the block, is divided into two electoral colleges. Section 57 states that every Panchayat Samiti shall consist of members elected by direct election from each electoral college. He submitted that 14 Dhebewadi electoral college consists of 2 electoral colleges namely Dhebewadi 27 and Sanbur 28. From Dhebewadi 27, one member was to be elected. From Sanbur 28, one member was to be elected. There are 13,543 voters in Dhebewadi 27 and there are 13,517 voters in Sanbur 28. On 18/11/2001, the list of electoral colleges was declared. Objections were to be raised upto 7/12/2001. On 24/12/2001 final publication in respect of electoral divisions and electoral colleges was made. The elections were to be held on 17/2/2002. The petitioner was to contest from Sanbur 28. Mr. Patil contended that one day prior to the election, polling centre 246 which was included in 27 Dhebewadi was included in Sanbur 28. Centre 246 had 733 voters. They were to caste their votes from electoral college Dhebewadi 27. But because of this last minute change they had to caste their votes from the petitioner’s electoral college Sanbur 28. Due to short notice, the petitioner could not canvass amongst : 11 : the said 733 voters and, therefore, they voted in favour of respondent 1. 19. Mr. Patil further contended that there is no legal basis for the contention that the constituency has to be prepared village-wise and this impression sought to be created by the defendants is wrong. He drew my attention to the list of electoral centres 2002 of Dhebewadi electoral college of Patan electoral division. He submitted that at sr.no.14/6, Dhebewadi 246 polling centre is mentioned and 733 votes are shown against it. In 28 Sanbur electoral college, at sr.no.14/38, electoral centre 241 having 588 voters is shown and at sr. no.14/39 polling centre 242 is shown and 819 voters are shown against it. He submitted that Dhebewadi polling centre was removed from sr.no.14/6 from 27 Dhebewadi electoral college and added at the end of polling centres of 28 Sanbur electoral college. Polling centre 244 was shifted to sr.no.14/41 and at sr.no.14/42 Dhebewadi 246 was shown. This illegal last minute change has caused great injustice to the petitioner. These facts have been admitted by PW-2 Koli. He has also admitted that there is no village by name Mandrul Kole Budruk. Mr. Patil contended that this is not a case of merely changing the place of voting. He submitted that polling station 246 having 733 voters was shifted from 27 Dhebewadi electoral college to 28 Sanbur electoral college resulting in these 733 voters illegally casting their votes in 28 Sanbur electoral college. : 12 : 20. Mr. Patil pointed out that DW-3 Mr. Shinde Resident Naib Tahsildar has admitted that he was directed to bring the original record but the Tahsildar’s office informed him that the original record was not traceable. This smacks of corrupt practice. 21. Mr. Patil drew my attention to the register of training programme and contended that illegally relevant entries were cancelled. There was scoring in training musters which is admitted by Shri Koli. This scoring indicated that in 28 Sanbur, one polling centre was increased. He further submitted that respondent 1 has not entered in the witness box. He has not subjected himself to cross-examination and, hence, adverse inference needs to be drawn against him. In this connection, he relied on the judgment of the Supreme Court in Iswar Bhai C. Patel alias Bachu Bhai Patel v. Harihar Behera and another, (1999) 3 SCC 457. He also submitted that there are several admissions in the evidence of Shri Koli which support the petitioner’s case. The learned counsel relied on the judgment of the Supreme Court in State of Madhya Pradesh and others v. Devilal AIR 1986 SC 434 and contended that once notification delimiting constituencies is issued subsequent modification or alteration of constituencies after the election process starts, is not competent. 22. Lastly Mr. Patil contended that this is a case : 13 : where either the votes of the voters who caste their votes in 246 Dhebewadi will have to be separated and rest of the votes will have to be recounted or the election will have to be set aside and fresh election will have to be ordered. 23. Mr. Kumbhakoni, on the other hand, submitted that there are no illegalities committed by the respondents. He submitted that corrupt practice is not even clearly alleged. It is also not proved. He submitted that there was no change in the electoral colleges. All that was done was shifting of polling station 246 to 28 Sanbur as per rule 9 of the said Rules. He submitted that only the error was rectified and the rectification was done not less than 7 days before the date of poll as required by rule 9. Mr. Kumbhakoni contended that it is true that scoring was done in the register but, that was a consequence of the rectification of mistake. It was done openly and no malpractice is involved in the said scoring. Mr. Kumbhakoni contended that till the results were declared, the petitioner did not register any protest. Though it is true that once election process starts, the court does not interfere with it, the fact that the petitioner did not register protest with any authorities would indicate that the petitioner does not have any genuine grievance. He wanted to take chance. He waited till the results were declared and, because the results were adverse to him, he filed the instant petition by taking up frivolous grounds. Relying on the : 14 : judgment of the Supreme Court in Shri Beli Ram v. Shri Nand Kumar and Others, (1977) 2 SCC 109, he submitted that the petitioner has not been able to prove how because of the alleged illegalities, the result of election, so far as he is concerned, is materially affected. Mr. Kumbhakoni further contended that the petitioner in Election Petition No.9 of 2002 has not challenged the trial court’s judgment. The election of 27 Dhebewadi is, therefore, valid. If the petitioner’s prayers are granted, that will invalidate the election of 27 Dhebewadi electoral college. Such a result would affect the voting rights of the voters of that electoral college. Mr. Kumbhakoni submitted that in the circumstances, the petition deserves to be dismissed. 24. Before touching the merits of the case, it is necessary to have a look at the relevant provisions of the said Act and the said Rules. Section 9 of the said Act provides for constitution of Zilla Parishads. Section 12 provides for division of district into electoral divisions. So far as it is relevant, it reads thus: "12. The State Election Commission shall, for the purposes of election of Councillors divide each District, into electoral divisions (the territorial extent of any such division not being outside the limits of the same Block), each returning one : 15 : Councillor and there shall be a separate election for each electoral division." 25. Section 13 provides for "The list of voters". So far as it is relevant, section 13 reads thus. "13. (1) The electoral roll of the Maharashtra Legislative Assembly [excluding the last part thereof as is referred to in sub-rule (2) of rule 5 of the Registration of Electors Rules, 1960 made under the Representation of the People Act, 1950] prepared under the provisions of the Representation of the People Act, 1950, and in force on such day as the [State Election Commission] may by general or special order notify in this behalf for such part of the constituency of the Assembly as is included in an electoral division, shall be the list of voters, for such electoral division." 26. Section 57 provides for "Constitution of Panchayat Samitis". So far as, it is relevant, it reads thus: "57. (1) Every Panchayat Samiti shall consist of members elected by direct election one each from each electoral college in accordance with the provisions : 16 : contained in section 58 and the rules in that behalf. Provided that, the ratio between the population of the territorial area of a Panchayat Samiti and the number of seats in such Panchayat Samiti to be filled in by election shall, as far as practicable, be the same throughout the State." 27. Section 58 provides for "Electoral colleges". So far as it is relevant, it reads thus: "58. (1) For the purposes of holding elections under sub-section (1) of section 57, - (a) each electoral division in the Block shall be divided into two electoral colleges [by the State Election Commission, so however, that such electoral colleges shall be divided in such manner that the ratio between the population of each electoral college and, the total number of members to be elected for the Panchayat Samiti shall, as far as practicable, be the same throughout the Panchayat Samiti area]; (1A) the list of voters for each such : 17 : electoral division referred to in sub-section (1) of section 13 and in force on such date as the [State Election Commission] may, by general or special order notify in this behalf, for such part of the electoral division as is included in an electoral college, shall be the list of voters for such electoral college. An officer designated by the [State Election Commission] shall maintain the list of voters for each electoral college." 28. These provisions indicate that the Zilla Parishad consists of councillors chosen by direct election from electoral division in the district. For the purposes of election of councillors, every district is divided into electoral divisions each returning one councillor. The electoral roll prepared for the Maharashtra Legislative Assembly and in force on such day as the State Election Commission may by general or special order notify in this behalf for such part of the constituency of the Assembly as is included in an electoral division is the voters list, for such electoral division. 29. For every Block there is a Panchayat Samiti and every Panchayat Samiti consists of members elected by direct election from each electoral college. For the purpose of holding elections of the Panchayat Samiti each electoral division is divided into two electoral colleges : 18 : and the list of voters for each such electoral college shall be the list of voters for such part of electoral division as is included in an electoral college as per the voters list prepared for Assembly elections. Electoral college has a separate list but, it is taken from the list prepared for Assembly elections. The electoral collage is not divided on the basis of voters but on the basis of population and ratio which is required to be maintained as per the Act. 30. Power to create electoral divisions and colleges is vested in the State Election Commission. Under section 9-A of the said Act, the State Election Commission can delegate its powers to any officer of the State Government not below the rank of Tahsildar. Rule 2(c-i) of the said Rules defines list of voters to mean the list of voters notified by the State Election Commission under sub-section 1 of section 13 of the said Act. Rule 9 of the said Rules provides for "Polling station". It reads thus : "9. Polling Stations:- The Returning Officer shall provide a sufficient number of polling stations for each [electoral college] for which election is to be held