BAPUSAHEB LAXMANRAO MOHITE Vs. SURESH BAPU GAVALI

JUDGEMENT

(1.) Writ Petition No. 5298 of 1986 filed under Article 226 of the Constitution of India is by petitioner Bapusaheb Laxmanrao Mohite. By this petition he has challenged the Judgement and order dated 28th October, 1986 passed by the learned Joint Civil Judge, Senior Division, Kolhapur in Election Petition No. 14 of 1985 whereunder the election of the petitioner as a corporator of the Kolhapur Municipal Corporation from Ward No. 58-E, New Shahupuri, Kolhapur was declared illegal and void and the respondent No. 1 Suresh Bapu Gavali, who is petitioner in Writ Petition No. 1521 of 1987, was declared elected by a Margin of 12 votes. It is common ground that on the counting of votes by the Returning Officer, the petitioner was found to have secured 648 valid votes as against 646 by the respondent No. 1. Accordingly, he was declared elected to the Kolhapur Municipal Corporation as corporator. The election petition was filed by the respondent No. 1 being Election Petition No. 14 of 1985 in the Court of Joint Civil Judge, Senior Division, Kolhapur. The prayers in that petition, inter alia, were that certain votes cast in his favour were wrongly declared invalid; that there should be recounting of votes and that the result should be declared in his favour after recounting of votes if majority of valid votes were found to be in his favour. It is also common ground that the learned Judge himself took up the job of recounting the votes, particularly the votes which were rejected by the Returning Officer. On recounting and after reconsidering the rejected votes, he concluded that the respondent No. 1 had secured 660 valid votes. As regards the petitioner, though if the rejected votes in his case were reconsidered on the same basis the valid votes cast in his favour would have come to 661, the learned Judge did not record any finding to that effect on the ground that the petitioner having not made an application for recrimination, his votes could not be recounted. In other words, he took the view that while the number of valid votes cast in favour of the petitioner would have to be taken at 648 only, the valid votes cast in favour of the respondent No. 1 being 660 the respondent No. 1 had to be declared elected by a majority of 12 votes. Accordingly, he set aside the election of the petitioner and declared the respondent No. 1 as elected as corporator of the Kolhapur Municipal Corporation.

(2.) It is primarily against the conclusion arrived at by the learned Judge, viz., that in the absence of valid recrimination application by the petitioner the valid votes cast in his favour could not be recounted and taken into account, that the petitioner has filed this petition. It is stated by Shri Shah, the learned Counsel for the petitioner, that there is no dispute between the parties that the rejected votes are reconsidered in the same manner as they have been considered in the case of respondent No. 1, the number of valid votes in favour of the petitioner would come to 661 as against 660 in the case of respondent No. 1. He further states that whereas the petitioner's claim is that the number of valid votes in his favour should be 666 and that 5 votes have been wrongly disputed by the other side, he fairly admits that likewise the respondent No. 1 has also claimed 4 more votes which the petitioner has disputed. Before proceeding to consider the legal position as regards recrimination application, it is considered desirable to first consider the factual aspect of the matter, viz., how many valid votes were cast in favour of the petitioner and the respondent No. 1 respectively.

(3.) The crucial question, therefore, is whether recounting of votes, which would naturally include reconsideration of the rejected votes in favour of the petitioner, can be done in the election petition filed by the respondent No. 1 when the petitioner had not filed recrimination application in time. In this context Shri Shah, the learned Counsel for the petitioner, referred to the provisions of section 403 of the Bombay Provincial Municipal Corporations Act, 1949. Inviting our attention to sub-section (5) of section 403 of the said Act, Shri Shah submitted that recrimination application by the winning candidate in the municipal election was not contemplated under this Act. Referring to section 97 of the Representation of People Act, 1951, Shri Shah stated that the said Act did contemplate filing of recrimination application but such a provision was conspicuously absent in the Bombay Provincial Municipal Corporations Act, 1949 and, therefore, such provisions of section 97 of the Representation of People Act could not pressed into service while considering election petition pertaining to municipal corporations. He then invited our attention to the fact that on coming to know of the election petition and the proceedings before the trial Court, the petitioner did file a recrimination application though it was out of time. The petitioner also filed application for condonation of delay in filing the recrimination application. However, both the applications were not considered.