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2018 Supreme(Bom) 1588
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Abhay Shreeniwas Oka, Riyaz I. Chagla, JJ.
Ganesh Prakash Wankar and Ors. – Appellants
Vs.
The Divisional Commissioner, Pune Division, Pune and Ors. – Respondents
Writ Petition Nos. 2925 and 3346 of 2018
Decided On : 10-04-2018
For the Appellant : G.S. Godbole i/b Sumit S. Kothari and Ketki Gadkari
For the Respondent:A.Y. Sakhare, Senior Advocate and M.M. Pabale, AGP
Headnote:
Maharashtra Municipal Corporations Act, 1949 – Controversy which arise for consideration in Writ Petition is very narrow – Controversy concerns the election of the Chairman of the Standing Committee of the fourth respondent Municipal Corporation which is a Corporation constituted under the Maharashtra Municipal Corporations Act, 1949 – It appears that the election of the Chairman of the Standing Committee was scheduled to be held in the Municipal Hall – As per Rule 4 of the Bombay Provincial Municipal Corporations (Conduct of Elections to the post of Chairman of the Standing Committee, Transport Committee, Wards Committees and other Committees), Rules 2007, the Divisional Commissioner (first respondent) nominated the second respondent preside over the meeting fixed to elect the Chairman of the Standing Committee – Municipal Secretary of the fourth respondent -Municipal Corporation who is the sixth respondent published a notice directing that his office will accept the nomination papers occasion for filing the present petition is the impugned order made by the first respondent-Divisional Commissioner –Held, Now coming to the decision in the case of Mohinder Singh Gill and another (supra), the Apex Court has discussed the powers of the Election Commission of India while dealing with a situation where before the declaration of the final result, the ballot papers and ballot boxes were destroyed in mob violence – In the present case, we are dealing with the order passed by the first respondent who plays no role at all except as a Presiding Officer and to give consultation to the Municipal Secretary for fixing the date of meeting – Apex Court was dealing with the powers of the Election Commission of India – In this case, the first respondent has passed an order which is null and void – If we allow such illegal order to stand, it will completely defeat the democratic nature of the election process for the post of the Chairman of the Standing Committee. Even in the case the issue was of the power of the State Election Commission where it was held that the power of the State Election Commission to conduct election is not less than that of the Election Commission of India –Now, coming to the separate petition filed by the seventh respondent the only substantive prayer made therein is to allow him to file nomination form in the process of election which was set aside by the first respondent – Even according to the case of the petitioner, he has a remedy available to challenge what allegedly transpired while challenging the result of the election – Writ Petition is rejected.
Abhay Shreeniwas Oka, J.
1. In Writ Petition No. 2925 of 2018, on the earlier date the parties were put to notice that the petition will be heard finally at the admission stage.
2. The controversy which arise for consideration in Writ Petition No. 2925 of 2018 is very narrow. The controversy concerns the election of the Chairman of the Standing Committee of the fourth respondent Municipal Corporation which is a Corporation constituted under the Maharashtra Municipal Corporations Act, 1949 (for short the said Act of 1949). It appears that the election of the Chairman of the Standing Committee was scheduled to be held on 3rd March 2018 at 10.30 a.m. in the Municipal Hall.
3. As per Rule 4 of the Bombay Provincial Municipal Corporations (Conduct of Elections to the post of Chairman of the Standing Committee, Transport Committee, Wards Committees and other Committees), Rules 2007 (for short 'the Election Rules'), the Divisional Commissioner (first respondent) nominated the second respondent (the Chief Executive Officer of Zilla Parishad, Solapur) to preside over the meeting fixed on 3rd March 2018 to elect the Chairman of the Standing Committee. The Municipal Secretary of the fourth respondent -Municipal Corporation who is the sixth respondent published a notice directing that his office will accept the nomination papers between 11.00 a.m. to 2.00 p.m. on 1st March 2018. The occasion for filing the present petition is the impugned order made on 3rd March 2018 by the first respondent-Divisional Commissioner. Before the said order was made by the first respondent-Divisional Commissioner, on 2nd March 2018, a communication was issued by the first respondent to the Municipal Secretary informing him that he had nominated the second respondent to preside over the meeting scheduled to be held on 3rd March 2018 for electing the Chairman. In the said communication, he recorded that the nomination papers have been received by the Municipal Secretary on 1st March 2018 between 11.00 a.m. to 2.00 p.m. In the further part of the communication, he stated that the Municipal Secretary shall hand over the nomination papers to the Presiding Officer immediately after the commencement of the meeting to be held on dated 3rd March 2018.
4. By the impugned order, the first respondent purported to cancel the process of the election for the post of Chairman of the Standing Committee which was to be conducted on 3rd March 2018 and he directed that a fresh process shall be conducted from the stage of filing of nomination papers.
5. Thereafter, on the basis of the said order, the Municipal Secretary directed that fresh nomination papers shall be received by him between 11.00 a.m. to 2.00 p.m. on 6th March 2018 in his office.
6. The submission of the learned counsel for the petitioner is that the first respondent had no power to cancel the election process in as much as neither under the provisions of the said Act of 1949 nor under the provisions of the Election Rules, any power has been conferred on the first respondent to cancel the entire process of election and to direct a fresh election process to be conducted. He pointed out that the letter dated 2nd March 2018 addressed by the first respondent to the Municipal Secretary was addressed after the nomination papers were received by the Municipal Secretary on 1st March 2018. His submission is that the impugned order dated 3rd March 2018 is nullity which interferes with the democratic process of election. He pointed out that the first respondent has relied upon the report submitted by the second respondent who was to preside over the meeting scheduled to be held on 3rd March 2018 and the letter dated 1st March 2018 as well as video clip. He submitted that only on the basis of the said report and the video clip, he has come to the conclusion that there was a serious issue of law and order during the period when the nomination forms were accepted on 1st March 2018 and therefore, the process of accepting nom
