MANIKLAL MADANLAL LAHOTI Vs. TUKARAM GANPAT TEHORE

JUDGEMENT

(1.) THE election to Chikhali Municipal Council was held on November 17, 1974 in which petitioner Maniklal and respondent No. 1 Tukaram were the contesting candidates from Ward No. 17 of Chikhali. The poll was held on November 17, 1974 and the votes were counted on November 18, 1974. As a result of this counting respondent No. 1 Tukaram was declared elected from Ward No. 17. The total votes polled at the election were 456. Respondent No. 1 Tukaram secured 224 votes whereas petitioner Maniklal got 222 votes. Ten votes were declared invalid. In view of this counting respondent No. 1 Tukaram was declared elected by the Returning Officer as a Councillor from Ward No. 17.

(2.) AFTER the said election, the petitioner filed an election petition before the district Judge, Buldana, under Section 21 of the Maharashtra Municipalities Act, 1965, referred to hereinafter as the Act. The main ground raised in the election petition related to the denial of right of franchise to two voters, namely, Diwakar Radhakrishna Deshpande and Pralhad Bhikaji Murkute. Some other contentions were also raised in the said election petition, but we are not concerned with them in this Special Civil Application. Therefore, it is not necessary to make a detailed reference to the said contentions.

(3.) AFTER appreciating all the evidence on record, the learned district Judge by his order dated April 29, 1975 initially directed re -counting of the votes. The votes were then re -counted before the Court and ultimately it was found that one vote was wrongly counted by the Returning Officer in favour of respondent No. 1, the returned candidate. The said vote was, therefore, excluded from consideration and ultimately it was found that respondent No. 1 Tukaram secured 223 votes whereas petitioner Maniklal polled 222 votes. Therefore, in spite of this re -counting the result of the election was maintained as the respondent No. 1 secured majority of votes. So far as the other issues are concerned, the learned district Judge came to the conclusion that Diwakar Radhakrishna Deshpande and Pralhad Bhikaji Murkute were improperly disallowed by the Returning Officer from exercising their right to vote. The learned district Judge further found that as a consequence of this the result of the election had been materially affected. However, the learned district Judge relying upon the provisions of Section 21(11 -A) of the Act came to the conclusion that by his conduct in disallowing these two voters to vote, the Presiding Officer only committed an error and nothing else and, therefore, in view of the provisions of Sub -section (11 -A) of Section 21 of the Act, the election of the returned candidate cannot be set aside, as it has not been proved that the said error or irregularity was corruptly caused. In the view which the learned district Judge took, he dismissed the election petition filed by the petitioner. Being aggrieved by this decision of the district Judge the present writ petition is filed by petitioner Maniklal challenging the said order of the learned district Judge.