RAMCHANDRA PANDURANG PATIL Vs. VASANTRAO TATOBA HARUGADE

JUDGEMENT

(1.) THE main question involved in the petition :-The question involved in this petition relates to the purpose of a tendered vote as contemplated by the Maharashtra Municipalities Act, 1965 (hereinafter, the Act ).

(2.) FACTS :---The facts are simple. Question relates to the election of Sangli Municipal Council and we are concerned with Ward No. 15 of the said Councils territory. The voting took place on 5th November, 1985. There were, in all, 2038 voters; the votes polled were 1,114. There were 8 votes which were admittedly invalid About one vote, there was some difficulty because one voter who went to exercise his franchise was informed that in his name some other person had already cast a vote. There is no dispute that voter satisfied the Returning Officer --- (a) that the himself was the voter concerned; (b) that the earlier person casting vote was not himself. Obviously, according to him the earlier person casting a vote in his name was an imposter. The Returning Officer was satisfied about this position and, hence he allowed the voter concerned to cast his vote. But, as required by Rule 40 of the Maharashtra Municipalities Election Rules, 1966 (hereinafter, the Rules), he could not allow him to insert the ballot paper in question in the ballot box. Under Rule 40 such a ballot paper, which is called tendered ballot paper, although it is identical ballot paper as any other ballot paper is required to be kept in a separate cover. The Returning Officer complied with all the formalities of Rule 40 and kept the tendered vote in a separate cover. Counting took place on 6th November, 1985. The petitioner, respondent No. 1 and respondent No. 2 were the candidates from the said Ward No. 15. Out of 1, 105 ballot papers [1, 114 minus (8+1)= 1, 105]. 465 were polled in favour of the petitioner. Equal number of 455 votes was polled in favour of respondent No. 1 and 195 votes were polled in favour of respondent No. 2 it is, thus, clear that clear that respondent No. 2 is out of reckoning. But there id arise a tie between the petitioner and respondent No. 1. The Returning Officer, therefore, decided to resolve the tie by lots and : in the lots, the present petitioner was declared elected, he having won the wager. On 18th November, 1985, the election petition was filed by present respondent No. 1 against the result declared by the Returning Officer. By his order dated 7th December, 1987, the leaned Judge directed the sealed packet containing the tendered ballot paper to be opened in open Court with a view to ascertain whether the tendered vote was given in favour of the present petitioner or in favour of the present respondent No. 1. There is no dispute at this stage that , upon opening of the packet, the ballot paper showed the vote to have been given by the voter concerned to present respondent No. 1. The election petition of the present respondent No. 1 was therefore, allowed and he was held to have been elected by one vote. The present writ petition is filed against the said order of the learned Judge.

(3.) FOR the sake a of convenience, parties will be referred to hereinafter with reference to their first names. In the lower Court, the present respondent No. 1 Vasantrao was the petitioner and Ramchandra was respondent No. 1. They will, therefore, be referred to hereinafter as Vasantrao and Ramchandra, respectively. Mr. Vaze appears for Ramchandra who declared to have lost to Vasantrao.