KISAN JANUJI Vs. ANILKUMAR MANILAL

JUDGEMENT

(1.) THE petitioner by this petition under Article 227 of the Constitution challenges the order of the Extra Assistant Judge, Akola, as an Election Tribunal, setting aside the election of the petitioner as a member to the Municipal Council, Akot from Ward No. 15 held recently.

(2.) AN election programme for electing members from different wards to the Municipal Council at Akot under the provisions of the Maharashtra Municipalities Act, 1965, was fixed by the authorities in 1967. The dates for acceptance of nomination papers was 10th May 1967, scrutiny was on 13th May 1967, date for withdrawal was 20th May 1967, poll was taken on 4th June 1967 and the votes were counted and the results declared on 5th June 1967. The petitioner and the first respondent were the only contesting candidates from Ward No. 15. On a scrutiny and counting of ballot papers, it was found that each of them, that is, the petitioner and the first respondent, had secured 320 valid votes. Under Rule 58 of the Maharashtra Municipalities Election Rules, 1966 if after the counting of the votes is completed an equality of votes is found to exist between any candidates and the addition of one vote will entitle any one of the candidates to be declared elected, the Returning Officer is required forthwith to decide between these candidates by lot. Accordingly such lot was drawn and the verdict was in favour of the petitioner and the petitioner was, therefore, declared elected.

(3.) THE election of the petitioner in these circumstances was challenged by the first respondent on several grounds before the Extra Assistant Judge, who is empowered to decide disputes relating to elections under Section 21 of the Maharashtra Municipalities Act. Among other issues arising out of the pleadings of the parties was issue No. 9. The contention of the first respondent giving rise to this issue appeared to be that two citizens viz. , Shri Shantaram Yadaorao Deshpande and Smt. Sulabha Shantaram Deshpande were entitled to vote at this election and that their names were included in the electoral roll of the Maharashtra Legislative Assembly, but their names were not incorporated in the list of votes prepared by the Chief Officer for the Municipal elections and they were not allowed to vote at the election and therefore, the result of the election was materially affected. It will be seen that each of the contesting candidates has polled equal votes and if it could be established that the two citizens had a right of franchise to cast their votes at this election from this ward and were illegally prevented from voting, then the result of the election could be said to be affected by such improper refusal of the franchise.