MALIKSINGH SITARAM MAINAWALE Vs. JAGATSINGH THAKURSINGH KALLAWALE

JUDGEMENT

(1.) As all these Writ Petitions involve common questions of law and facts, they were heard together and are being disposed of by this common judgement.

(2.) Elections to the Municipal Corporation, Solapur took place on 25th Apr. 1985 and the petitioners in these Writ Petitions were duly declared elected as Councillors from Ward Nos. 26, 31, 32, 35, 39 and 52. After the declaration of the elections, Election Petitions were filed challenging the elections to these wards. The original petitioners raised a contention in the Election Petitions that by reason of improper reception or refusal of the votes, the result of the election has been materially affected and, therefore, it is necessary to recount the alleged invalid votes. One of the contentions raised was that various ballot papers which bore more than one cross mark in the column reserved for marking the choice were rejected by the Returning Officer, which was contrary to the provisions of law. The learned Civil Judge, Senior Division, Solapur, by his order dt. 20th Sept. 1985 accepted this contention of the election petitioners and held that the ballot papers which bore more than one mark in the column reserved for any one candidate should be treated as valid ballot papers. On that basis he directed the Municipal Commissioner to send the sealed ballot boxes of these Municipal wards for recounting of the votes. It is this common order which is challenged in these Writ Petitions.

(3.) Shri C.J. Sawant, the learned Counsel appearing for the petitioners in some Writ Petitions, contended before us that the order passed by the Civil Judge, Senior Division on the preliminary issue is vitiated by an error apparent on the face of the record, it being contrary to the mandatory provisions of the Act and the Rules. It is contended by him that under S.5 of the Bombay Provincial Municipal Corporations Act (hereinafter referred to as 'The Act') the State Government is authorised to divide the whole of the local area into different wards. Then by Sub-Sec. (3) of S.5 it is provided that each of the Wards shall elect only one Councillor. By S.14 of the Act it is laid down that election of the Councillors shall be held in accordance with the rules. S.433 mandates that the rules in the Schedule as amended from time to time shall be deemed to be part of this Act. Chapter I of the Schedule deals with the Election Rules. R.12 lays down the procedure to be followed regarding the ward elections. R.18 deals with the procedure for recording of the votes. As to how the votes should be recorded is laid down in R.22. As per R.25 it is laid down that the ballot paper shall be in form B. Then comes R.36 which enumerates the grounds for rejection of a ballot paper. The form of the ballot paper is Farm B attached to the Schedule. The ballot paper is in two parts. It has an outer foil and a counterfoil. On the back of the ballot paper, instructions are printed. According to the learned Counsel, if these various provisions. of the Act and the Rules are read with the contents of the Form, which is also an integral part of the Act, it is quite clear that if a voter puts more than one mark, against the name of one candidate, the said ballot paper is invalid. In view of these mandatory provisions, the reliance placed by the learned Civil Judge, Senior Division upon the decision of this Court in Dajiba Gurunath Gavane v. Sangappa Sharnappa Patil, (1966) 68 Bom LR 470 is wholly unwarranted. The said decision was based on the provisions of the Bombay Village Panchayats Act, which are not pari materia to the provisions of the present Act. It was also contended by Shri Sawant that even otherwise the said decision requires reconsideration as it can safely be termed as per incuriam since the Division Bench therein had failed to take notice of the relevant provisions of the Bombay Village Panchayats Act read with the rules and the form prescribed. From the bare reading of the judgement it is quite clear that the relevant Form and the instructions contained therein were not brought to the notice of the Division Bench. Therefore, taking any view of the matter, the order passed by the Civil Judge, Senior Division, cannot be sustained.