Important Point
Countermanding of election—There is no impediment for persons claiming to have acquired new rights to vote to file application to include their names in voters' list.

S.V. Gangapurwala, J.

1. Both the Writ Petitions are based on similar set of facts and involve common question of law. As such, to avoid rigmarole, the same are decided together.

2. The elections of respondent no.5 - Agriculture Produce Market Committee were declared and election programme was published. The same was to commence from 25-8-2015. Polling was scheduled on 25-10-2015. Counting of votes was to take place on 26-10-2015. On 18-10-2015, after nomination papers were filled in, one of the contesting candidates expired. In view of Rule 55 of the Maharashtra Agricultural Produce Marketing (Development and Regulation) Rules, 1967 [For short, hereinafter referred to as “Rules of 1967”], the order countermanding the elections was passed. As such, the poll scheduled on 25-10-2015 could not take place.

3. Fresh elections are declared polling of which is to be held on 31-1-2016. The programme states that the nomination papers would be filed from 3-12-2015 to 17-12-2015 and different states of elections are contemplated. The counting of votes is to be held on 1st February 2016.

4. Mr. Khandare, the learned Counsel appearing for the petitioner in W.P. No. 11860/2015, during the course of his erudite arguments, submits that Rule 55 of the Rules of 1967 will have to be read in its entirety. Though Rule 55 refers to countermanding of poll, the said Rule further makes it abundantly clear that after poll is countermanded, proceeding with reference to the elections has to be commenced a new ‘in all respects’. The process of election would commence from preparation of voters' list as laid down in Rule 35 of the Rules of 1967. The preparation and finalization of the voters' list is an integral part of the process of election. In the present case, respondent no.4 - Election Officer did not prepare fresh voters' list. The same is not in consonance with Rule 55 of the Rules of 1967. To buttress his submission, that preparation of the voters' list would be an intermediate stage in the process of election, the learned Counsel relies on judgment of the Hon'ble Apex Court in the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & another Vs. The State of Maharashtra & others, reported in 2001(8) SCC 509. The learned Counsel further relies on judgment of the Hon'ble Apex Court in the case of Nandi Infrastructure Corridor Enterprises Limited & others Vs. Election Commission of India & another, reported in (2010) 13 SCC 334, to submit that ‘cancel’ means ‘to destroy the force, effectiveness or validity of an order’ and when the elections are countermanded, the same tantamounts to cancellation of the election and the stage from the preparation of the voters' list has to be commenced afresh. The learned Counsel submits that a similar provision to that of Rule 55 of the Rules of 1967 was the subject matter of interpretation before the learned Single Judge of Karnataka High Court in the case of Neelasekhara Raju Vs. Returning Officer, reported in ILR 1987 Karnataka 224, and it was interpreted by the learned Single Judge therein that the voters' list has to be in existence for beginning of a new election. Though the nominations are saved, election has to be a new election. If the new election has to take place, it has to conform to the law on the date a new election has to commence and the voters' list in accordance with the amended provision has to be in existence for the beginning of a new election.

5. Mr. Khandare, the learned Counsel for the petitioner, submits that during the interregnum i.e. cancellation of the earlier election and declaration of the election programme of the new election, some new Village Panchayats have come into existence because of which nominees of the said Village Panchayats will be eligible to cast their votes and participate in the election. In view of the said fact also, preparation of fresh voters' list is appropriate. The learned Counsel refers to Rule 36 of the said Rules