Bapusaheb Laxmanrao Mohite vs Suresh Bapu Gavali & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1989 Supreme(Bom) 211

IN THE HIGH COURT OF BOMBAY
Jahagirdar R.A. Sugla T.D., JJ.
Bapusaheb Laxmanrao Mohite .... Petitioner.
Versus
Suresh Bapu Gavali others.... Respondents.
Writ Petition Nos. 5298 of 1986 1521 of 1987, decided on 11-8-1989.
Advocates appeared :
Ajit P. Shah, in W.P. No. 5298/1986, for petitioner in W.P. No. 1521/1987, for respondent No. 1.
C.J. Sawant i/b. B.N. Naik Ashok P. Mundargi, in W.P. No. 5298/1986, for respondent No. 1.
Ms. Anita A. Agarwal, in W.P. Nos. 5298/1986 1521/1987, for respondent No. 2.
C.J. Sawant with Vikram Pai, in W.P. No. 1521/1987, for petitioner.

Headnote:Section 403 (5)- Election of Corporator of a Municipal Corporation-Election petition by respondent claiming that certain votes cast in his favour wrongly declared invalid- Application by petitioner the winning candidates for recrimination.
       Held-No special provision for recrimination application under Section 403. Not necessary for petitioner to file recrimination application. Incumbent upon Judge to take into account all valid votes as, whether in favour of candidates filing election petition or person declared elected.
       The petitioner was declared elected to the Municipal Corporation as corporator. The election petition was filed by the respondent No. 1 being in the Court of Joint Civil Judge. The prayers in that petition, inter alia, were that certain votes as in his favour were wrongly declared invalid; that there should be reconting 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. The Judge himself took up the job of recounting the votes, particularly the votes which are 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 casts in his favour would have come to 661; the 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 corporator of the Municipal Corporation.
       It is pertinent to mention that during the pendency of the election petition before the Judge, the petitioner filed an application for recrimination dated 19th September, 1986. The petitioner filed another application dated 9th October, 1986 for condonation of delay in filing the recrimination application. Both applications were held to be time barred. The petitioner filed writ petition.
       Held-It was incumbent Upon the Judge to take into account all valid votes cast, whether in favour of the candidate who filed the election petition or the person declared elected. There being no special provision for recrimination application, it was not necessary for the petitioner to file a recrimination application. It is not as if the Judge has to merely count the valid votes in favour of the person who filed election petition. He has to declare a candidate to be winner after coming to conclusion as to who secured majority of valid votes. Since it was found that petitioner, whose election was set aside, had obtained 664 valid votes as against 661 by election petition, the order of Civil Judge setting aside election of the petitioner was set aside and election petition dismissed.

JUDGMENT - SUGLA T.D., J.:---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.

It is pertinent to mention that during the pendency of the election petition before the learned Judge, the petitioner filed an application for recrimination dated 19th September, 1986. The petitioner filed another application dated 9th October, 1986 for condonation of delay in filing the recrimination application. Both applications were held to be time barred.

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 respective

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