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1968 Supreme(Bom) 80
IN THE HIGH COURT OF BOMBAY
Abhyankar N.L.and Padhye D.B, JJ.
Appellants: Kisan Januji
Vs.
Respondent: Anilkumar Manilal and Anr.
Spl. Civil Appln. No. 339 of 1968Decided On: 03.07.1968
Counsels:
For Appellant/Petitioner/Plaintiff: P.G. Palshikar and V.T. Palshikar, Advs.
For Respondents/Defendant: V.R. Monohar and S.N. Kherdekar, Advs.
The voter list prepared by the Chief Officer is conclusive evidence as to the rights of persons who are entitled to vote.
Headnote:
ELECTION - MUNICIPAL COUNCIL - VOTER LIST - AUTHENTICITY - RIGHT TO VOTE - INTERPRETATION OF SECTIONS 11 AND 12 OF THE MAHARASHTRA MUNICIPALITIES ACT, 1965.
Fact of the Case:
In an election for the Municipal Council, Akot, the petitioner and the first respondent were the only contesting candidates. On a scrutiny and counting of ballot papers, each of them secured 320 valid votes. A lot was drawn to decide the winner, and the petitioner was declared elected. The first respondent challenged the election on the ground that two citizens were entitled to vote but their names were not included in the voter list prepared by the Chief Officer, and they were not allowed to vote. The Election Tribunal set aside the election.
Finding of the Court:
The Court held that the voter list prepared by the Chief Officer is conclusive evidence as to the rights of persons who are entitled to vote and it is not permissible to travel beyond that list. As the names of the two citizens were not in the voter list, they had no right to exercise any franchise at this election and that fact, therefore, could not affect the election in the manner in which it was contended by the first respondent.
Issues: 1. Whether the voter list prepared by the Chief Officer is conclusive evidence as to the rights of persons who are entitled to vote? 2. Whether the names of the two citizens were in the voter list prepared by the Chief Officer?
Ratio Decidendi: 1. The Court held that the voter list prepared by the Chief Officer is conclusive evidence as to the rights of persons who are entitled to vote. This is because Section 12(2) of the Maharashtra Municipalities Act, 1965, provides that the voter list prepared, maintained and authenticated by the Chief Officer is conclusive evidence for the purpose of determining whether a person is qualified or not qualified to vote. 2. The Court held that the names of the two citizens were not in the voter list prepared by the Chief Officer. This is because the list of voters prepared by the Chief Officer did not include the names of the two citizens, even though their names were included in the electoral roll of the Legislative Assembly for the appropriate area.
Final Decision: The Court allowed the petition and set aside the order of the Election Tribunal. The result declared by the Returning Officer was held to be properly declared.
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.
4. It seems at the instance of the respondent No. 1 a copy of the electoral roll for the Maharashtra Legislative Assembly was filed and it is marked as Exhibit 45. The electoral roll comprised of a printed list and two appendages. The printed list includes names of 768 persons of thereafter the names of Shri Shantaram Deshpande and Smt. Sulabha Deshpande were mentioned at serial Nos. 769 and 770. On the first appendage, and thereafter on he second appendage names of seven other voters bearing serial Nos. 769 and 770. On the first appendage, and thereafter on the second appendage names of seven other voters bearing serial Nos. 771 to 777 appear to be printed. It is an admitted position, however, that the names of the two Deshpandes do not appear in the voter list maintained and authenticated by the Chief Officer and it was also filed as Exhibit 43. That was the copy of the voters list pertaining to Ward No. 15.
5. In this list though the names at serial Nos. 769 and 770 from the electoral roll of the Legislative Assembly are omitted, it appears that the list of persons at serial Nos. 771 to 777 appearing in the electoral roll for the Legislative Assembly was included in Exhibit -43 at serial Nos. 769 to 775, in other words, except for the omission to inclu
