S.V. Gangapurwala, J.

The Writ Petition No. 4927 of 2018 is filed challenging the communication dated 19th May, 2018 issued by the Election Commission of India thereby declining to delete the names of respondent Nos. 5 to 14 from the electoral roll prepared for the biennial election to the 26 Osmanabad Latur Beed Local Authorities Constituency for Maharashtra State Legislative Council.

2. Mr. Gaware, the learned advocate for petitioners during the course of his arguments strenuously contended that, respondent Nos. 5 to 14 were elected as councilors of Beed Municipal Council. Their names were included in the electoral roll for biennial election to the 26 Osmanabad Latur Beed Local Authorities constituency for Maharashtra Legislative Council. The respondent Nos. 5 to 14 were disqualified as councilors of Beed Municipal Council by the Hon’ble Minister under order dated 18.05.2018 U/Sec. 55(A & B) and Sec. 42 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. The polling was scheduled to be held on 21st May, 2018. As these respondent Nos. 5 to 14 were disqualified, they were not eligible to vote on 21.05.2018.

3. The communication dated 19.05.2018 of the respondent No. 2 stating that though respondent Nos. 5 to 14 are disqualified as councilors of Municipal Council, Beed, still their names cannot be removed from the electoral roll is illegal and against the provisions of the statute. The learned counsel to substantiate his contention relies on Sec. 16, 22 and 27 of the Representation of the Peoples Act, 1950 (for short “Act of 1950”). According to the learned counsel a person who is disqualified, is not entitled to vote. It is submitted that, as per Sec. 22 of the Act of 1950 the correction can be made of the entries in the electoral roll. Reliance on Sub Sec. 3 of Sec. 23 of the Act of 1950 by the Election Commission is misplaced. Sec. 27(2)(d) of the Act of 1950 mandates the Chief Executive Officer of every local authority to immediately inform the electoral registration officer every change in the membership of that local authority and the electoral officer shall on receipt of the information, struck off from the electoral roll the names of the persons who have ceased to be members of that authority. The said provision has not been considered by the respondents. The learned counsel submitted that, on the date of poll, respondent Nos. 5 to 14 were not members of the Beed Municipal Council. It is the members of these local authorities who would elect the representative to the Maharashtra Legislative Council from the Local Authorities Constituency. Having declared disqualified, these respondents ceased to be the members, inter alia could not vote to elect the representatives of the local authorities. The learned counsel relies on the judgment of the Division Bench of this Court in a case of Yeshwantrao Kankrao Gadakh Vs. The State of Maharashtra and others reported in 1998 (3) Bom. C. R. 139.

4. Mr. Gaware, the learned counsel further submits that, interim order was passed by this Court directing the respondent authorities that, if the difference of votes between candidate who secures highest number of votes and the candidate securing second highest number of votes is more than the number of votes to be cast by respondent Nos. 5 to 14, then the Returning Officer may declare the result and if the difference of votes is less than the number of votes cast by respondent Nos. 5 to 14, then result shall not be declared until further orders of this Court. However, on 23rd May, 2018 the Election Commission erroneously issued a communication that the counting is to be stayed. The said communication is not in consonance with the interim order of this Court. The Election Commission could not have flouted the order of this Court and stalled the election process itself. Though the superintendence, direction and control of elections vest in Election Commission, still the same is within the purview of