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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
B.H. Marlapalle D.S. Zoting, JJ.
Ashraf Yunus Motiwala another.... Petitioners.
Versus
The State of Maharashtra others.... Respondents.
Writ Petition No. 2553 of 2000, decided on 30-8-2000.
Advocates appeared :
R.N. Dhorde, for A.M. Gaikwad, for the petitioner.
P.M. Shah, for respondent Nos. 7.
A.H. Kapadia, for respondent Nos. 2, 3 and 5.
S.C. Bora, for respondent No. 4.
Swzism Godsay, for S.K. Naikwade, for respondent 16 8.
E.P. Sawant, G.P., for respondent No. 1 and 9.
Rules for conducting meeting of the Corporation, Committees etc. of the City of Aurangabad, Rules 45 (j) and 50-Validity of ballot-Ballot papers showing mark "X" in first column and opposite the name of petitioner No.1 but not in the box (column)-Said ballot papers not invalid as Rule 50 does not make any specific provision for invalidating the ballot. AIR 1990 SC 838, AIR"1983 SC 1293 and AIR 1967 Bom 264, Ref.
Rules pertaining to election of Mayor and Deputy Mayor, Rules 45 (j)(i), 50, 63 and 64-0nce process of counting of ballot papers commences there is no stage of disputing validity of ballot papers or giving a decision on such disputed ballot papers.
Sections 20 to 32, Civil Procedure Code, Section 9 and Constitution of India, Art. 226-Elections to committees or sub-committees of Corporation can be challenged by filing civil suit under Section 9, Civil Procedure Code or petition under Article 226 of Constitution-Right to elect either remedy is the discretion of party concerned.- There is no doubt that the election to any of the committees or sub-committees of the Municipal Corporation governed by the Bombay Provincial Municipal Corporations Act can be challenged by filing a civil suit under Section 9 of the Civil Procedure Code as the said remedy is not impliedly or expressly barred under the provisions of the Municipal Corporations Act. At the same time availability of remedy under Section 9 of the Civil Procedure Code by itself will not operate against the petitioners to approach the High Court in writ proceedings by invoking Article 226 of the Constitution as the petitioners have the right to elect a remedy from amongst the remedies available and choice of one of the remedies is at the discretion of the party concerned. Having exercised one of such remedies the party is debarred from resorting to the other remedy subsequently that is after being unsuccessful in the earlier proceedings.
Sections 451 and 20 to 32- Elections to committees of Corporation-State Government does not have power to deal with challenge against election proceedings to any of committees of Corporation.-Section 451 of the Bombay provincial Municipal Corporations Act sets out powers of the State Government to suspend or rescind any resolution or order etc. of the Corporation or other authority in certain cases. This section does not specify the State Governments power to set aside the elections to any of the committees of the Corporation and the word "resolutions or order of the Corporation or any other authority" cannot be equated with the election proceedings and, therefore, under the said section the State Government does not have the powers to deal with the challenge against the election proceedings to any of the committees of the Corporation.
Articles 226 and 243-ZG(b) and Bombay Provincial Municipal Corporations Act (59 of 1949), sub-sections 16(2A) and 21(1)-Election of Chairman of Standing Committee does not fall within ambit of Section 16-Petition under Article 226 challenging election is maintainable. The bar created under Section 16(2A) of the Bombay Provincial Municipal Corporations Act specifically pertains to election to any Corporation and it has to be read in conjunction with sub-sections (1) and (2) of Section 16 which clearly refers to the election of councilor and the said elections are required to be held by the State Election Commission in terms of the provisions of Sections 14 and 14A of the Municipal Corporations Act. As against this, the Standing Committee, which is one of the bodies of the Corporation, is constituted under the provisions of Section 20(1) and the appointment of Chairman of Standing Committee is provided under Section 21(1) of the Municipal Corporations Act. Having regard to the scheme of the Constitution of various committee in terms of the provisions of Sections 20 to 32 of the Municipal Corporation Act it is implicit that the elections to such committees do not fall within the ambit of Section 16 of the Municipal Corporations Act. The mandate of Article 243-ZG(b) of the Constitution is, therefore, not applicable to the elections of the various committees/sub-committees of the Municipal Corporation constituted under the scheme of the Act, AIR 1999 SC 1723, Rel.
2. Elections to the 83 wards of Aurangabad Municipal Corporation, Aurangabad (respondent No. 2 herein) were held in the month of April, 2000. The petitioner No. 1 is one such elected councillor from Ward No. 57 and petitioner No. 2 is elected councillor from Ward No. 67. So also, the respondent Nos. 7 and 8 are elected councillors. Elections to the post of Mayor were held soon thereafter and the respondent No. 4 came to be elected for the said post as a candidate of alliance between the Bhartiya Janata Party and Shiv Sena. He is elected by a margin of only one vote. 16 councillors came to be elected as members of the Standing Committee on 2nd May, 2000 as required under section 20 of the Bombay Provincial Municipal Corporations Act (for short, the Municipal Corporations Act). Under section 21(1) of the said Act, the councillors are also required to elect the Chairman of the standing committee and three persons had submitted their nomination forms for the post of chairman i.e. petitioner No. 1, respondent No. 7 and Shri Salim Shamsher Patel in the meeting held on 22nd May, 2000. This meeting came to be adjourned and no further stages for the said elections could take place.
3. Writ Petition No. 2006 of 2000 came to be filed before this Court challenging the proceedings of the meeting held on 22nd May, 2000. By order dated 13th June, 2000 this Court was pleased to dispose of the said petition in view of the mandatory provisions of section 21(5) of the Municipal Corporations Act. In order to complete the remaining stages of the meeting held on 22nd May, 2000, a fresh meeting was scheduled on 14th June, 2000 and respondent No. 4 presided over the said meeting. The third candidate viz. Salim Patel withdrew his nomination to contest the election of the chairman of the standing committee and, therefore, there were a straight contest between petitioner No. 1 and respondent No. 7. The polling started at about 1.00 p.m. on 14th June, 2000 and it was over by about 2.15 p.m. and all the 83 councillors exercised their franchise. While the polling was going on, alongwith respondent No. 4, the respondent No. 3, respondent No. 5 and the Deputy Mayor were sitting on the dias and Shri M. P. Khairnar, Chief Accounts Officer of the respondent No. 2, corporation was directed to work as a Polling Officer (Scrutiny and Counting). Petitioner No. 2 was the polling agent of petitioner No. 1 and respondent No. 8 was the polling agent of respondent No. 7. They were called on the dias after the polling was over and at the time of opening the ballot box. The ballot papers were taken out by respondent No. 4 and the polling officer and each ballot paper was signed by respondent No. 4 after ensuring that there were in all 83 ballot papers. After scrutiny the ballot papers were shown to each of the counting agents and simultaneously read over and placed in the tray of the respective contesting candidates by the polling officer. Four ballot papers were objected to by respondent No. 8 and hence they were reportedly kept in a separate tray. The reading over of the ballot papers by the polling officer was admittedly on a mike and, therefore, the number of votes cast in favour of both the candidates was known to the councillors and the others who were present in the hall and the petitioner No. 1 had secured 39 votes as against 40 votes secured by respondent No. 7. On the disputed votes the respondent No. 4 gave his decision and held all of them invalid. The polling officer, thereafter, announced the election results and declared that the respondent No. 7 won the said election by a margin of one vote. This election of respondent No. 7 to the post of Chairman of standing committee has been challenged in the instant petition.
4. The petitioner contends that out
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