(1.) THIS petition under Article 226 of the Constitution Challenges the order made by the Assistant Judge, Kolhapur, by which he dismissed the petition filed by the petitioner seeking to have the election of respondent No. 5 set aside on various grounds.
(2.) THE election in question was of the Panchayats Samiti of the sidhanerli electorate Group from Sangav Gat. The petitioner as well as respondents Nos. 5 to 9 were the contesting candidates at the said election. The election was held on 31st July 1962. The date of the election was fixed by a notification issued by the collector of Kolhapur as required by S. 14 of the Maharashtra Zilla Parishad and panchayat Samitis Act, 1962 (hereinafter referred to as "the Act" ). The time for the election as notified in the notification issued by the Collector was from 11 a. m to 5 p. m. The votes were counted on 3rd of August 1962 and it was found that the petitioner and respondent No. 5 had polled an equal number of votes, viz. 17 votes each. The Returning Officer of the Panchayat Samiti. who is respondent No. 2 to this petition, drew lots as required by section 26 of the Act and declared that respondent No. 2 was challenge by the petitioner by filing an application before the learned Assistant Judge at Kolhapur, Under sec. 27 (1) of the Act. Several contentions were raised in the petition. It was alleged that respondents Nos. 2, 3 and 4 who were the officers concerned with the conduct of the election, had acted in collusion with respondent No. 5 and had , in fact, commenced the election at 8 a. m on the day of the election without informing either the petitioner or his agents. According to the allegation, the election having commenced three hours before the time fixed by the Collector for the commencement of the election , the votes which were cast during this period were illegal votes and this illegality had materially affected the result of the election. There were allegations in the petition that respondent No. 5 has resorted to corrupt practices at the time of the election. Similarly, it was alleged that during the period from 8 a. m. to 11 a. m. such voters as came and exercised their right of voting were influenced by respondent No. 5 had resorted to corrupt practices at the time of the election. There were allegations in the petition that respondent No. 5. It is unnecessary to refer to the various other allegations which were made in the petition. It is unnecessary to refer to the various other allegation which made in the petition. The concerned in the present petition are (1) that the election started three hours before the time fixed by the Collector for the commencement of the election, and (2) that the polling agents of the petitioner could not be present during the time between 8 a. m. and 11 a. m. and the respondents Nos. 1 to 3 in collaboration with respondent no. 5 had deliberately refrained from informing the petitioner or his polling agent that the election would commence at 8 a. m.
(3.) IT appears that at an earlier stage in the conduct of the election petition, a preliminary objection was raised as to be maintainability of the application. The objection was that the election petition was not legally or validly presented as required by the Act and that preliminary objection, it appears, found favour with the learned Assistant Judge. The view taken at that stage, by the learned assistant judge after the matter was sent back to him for disposal in accordance with law.