ASHRAF YUNUS MOTIWALA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) WE have heard the learned Counsel for the respective parties. Rule. Respondents waive service. Petition is taken up for final hearing forthwith with the consent of the parties.

(2.) ELECTIONS to the 83 wards of Aurangabad Municipal Corporation, Aurangabad (respondent No. 2 herein) were held in the month of April, 2000. The petitioner No. 1 is one such elected councillor from Ward No. 57 and petitioner No. 2 is elected councillor from Ward No. 67. So also, the respondent Nos. 7 and 8 are elected councillors. Elections to the post of Mayor were held soon thereafter and the respondent No. 4 came to be elected for the said post as a candidate of alliance between the Bhartiya Janata Party and Shiv Sena. He is elected by a margin of only one vote. 16 councillors came to be elected as members of the Standing Committee on 2nd May, 2000 as required under section 20 of the Bombay Provincial Municipal Corporations Act (for short, the Municipal Corporations Act ). Under section 21 (1) of the said Act, the councillors are also required to elect the Chairman of the standing committee and three persons had submitted their nomination forms for the post of chairman i. e. petitioner No. 1, respondent No. 7 and Shri Salim Shamsher Patel in the meeting held on 22nd May, 2000. This meeting came to be adjourned and no further stages for the said elections could take place.

(3.) WRIT Petition No. 2006 of 2000 came to be filed before this Court challenging the proceedings of the meeting held on 22nd May, 2000. By order dated 13th June, 2000 this Court was pleased to dispose of the said petition in view of the mandatory provisions of section 21 (5) of the Municipal Corporations Act. In order to complete the remaining stages of the meeting held on 22nd May, 2000, a fresh meeting was scheduled on 14th June, 2000 and respondent No. 4 presided over the said meeting. The third candidate viz. Salim Patel withdrew his nomination to contest the election of the chairman of the standing committee and, therefore, there were a straight contest between petitioner No. 1 and respondent No. 7. The polling started at about 1. 00 p. m. on 14th June, 2000 and it was over by about 2. 15 p. m. and all the 83 councillors exercised their franchise. While the polling was going on, alongwith respondent No. 4, the respondent No. 3, respondent No. 5 and the Deputy Mayor were sitting on the dias and Shri M. P. Khairnar, Chief Accounts Officer of the respondent No. 2, corporation was directed to work as a Polling Officer (Scrutiny and Counting ). Petitioner No. 2 was the polling agent of petitioner No. 1 and respondent No. 8 was the polling agent of respondent No. 7. They were called on the dias after the polling was over and at the time of opening the ballot box. The ballot papers were taken out by respondent No. 4 and the polling officer and each ballot paper was signed by respondent No. 4 after ensuring that there were in all 83 ballot papers. After scrutiny the ballot papers were shown to each of the counting agents and simultaneously read over and placed in the tray of the respective contesting candidates by the polling officer. Four ballot papers were objected to by respondent No. 8 and hence they were reportedly kept in a separate tray. The reading over of the ballot papers by the polling officer was admittedly on a mike and, therefore, the number of votes cast in favour of both the candidates was known to the councillors and the others who were present in the hall and the petitioner No. 1 had secured 39 votes as against 40 votes secured by respondent No. 7. On the disputed votes the respondent No. 4 gave his decision and held all of them invalid. The polling officer, thereafter, announced the election results and declared that the respondent No. 7 won the said election by a margin of one vote. This election of respondent No. 7 to the post of Chairman of standing committee has been challenged in the instant petition.