VIRENDRA MAHAJAN Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS appeal is directed against the order of the learned Single Judge allowing Writ Petition No. 7 of 1995, setting aside the election of the 4th respondent in the Writ Petition (appellant herein) as President of Gadarwara Municipality and declaring the writ petitioner (4th respondent herein) as President in his place.

(2.) GENERAL elections to Municipalities in the State under the provisions of the M. P. Municipalities Act, 1961, (for short the Act), as amended by Act No. 17 of 1994, were held in December 1994. The consequential elections to the posts of President and Vice-President of Municipalities were also held in the same month. Such election was held with reference to Gadarwara on 29-12-1994, at a meeting of the newly elected Councillors, presided over by the District Collector. The appellant and the 4th respondent contested for the post of President. Twenty-one Councillors were present and cast their vote. Eleven voted for the 4th respondent and ten for the appellant. The Collector declared one vote polled in favour of the 4th respondent herein as invalid on the ground that the particular voter had affixed a circle around the cross-mark required to be put on the ballot paper and thereby it is possible to identify the voter. Thus, both the candidates were found to have received ten valid votes each. Adopting the system of lots as required by law, the appellant was declared elected.

(3.) THE unsuccessful candidate, namely the writ petitioner (4th respondent herein) challenged the election by way of writ petition contending that the vote rejected as invalid was really not invalid as it could not be said that there was any mark in the ballot paper to identify the particular voter and the Returning Officer, namely, the Collector had ignored principles of law applicable regarding the invalidity of the votes. The writ petition was opposed by the President (appellant herein) who contended, inter alia, that jurisdiction of courts in the matter of Municipal elections except by way of election petition under the law has been taken away under Article 243-ZG of the Constitution. Thus, the election can be challenged only by way of election petition as contemplated in Section 20 of the Act and, therefore, the writ petition was not maintainable. He further contended that reasonable possibility of identification of voter would be sufficient and the facts of the case reveal a plan of strategy to satisfy the writ petitioner that the particular Councillor had voted for him and the identity of the particular Councillor was known to everyone including the parties and the rejection of the vote was justified. The writ petitioner in reply contended that election petition would lie only to challenge election of the Councillors and not that of President and Vice-President and, therefore, the writ petition was maintainable.