Partly allowed

Smt. Shoba Suresh Khot v. State of Maharashtra through the Principal Secretary and Ors.

Bombay HC17 Dec 2019WP/14074/2018

Case brief

AI extract

What is this about?

A Division Bench quashed and set aside a communication debarbing a directly elected surpanch from voting in the up-surpanch election, ordering a fresh election within three months while permitting the incumbent to function temporarily.

What did the court decide?

Quashed the election of the respondent as up-surpanch and directed a fresh election to be completed within three months.

Smt. Shoba Suresh Khot Vs State of Maharashtra through the… — Election Law | Bombay HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.14214 OF 2018

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Uttam Mahadev Patil ...Petitioner

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vs. The State of Maharashtra and Ors. ...Respondents

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AND

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WRIT PETITION NO.14074 OF 2018

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Shoba Suresh Khot ...Petitioner vs. The State of Maharashtra and Ors. ...Respondents

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Mr. Tanaji Mhatugade for the Petitioners in both the matters. Ms. K. N. Solunke, AGP for the Respondent Nos.1 to 3/State. Mr.Bhooshan Mandlik for respondent No.5 in Writ Petition No.14074/2018. Mr.Bhavesh Magan h/f Mr. S. M. Kamble for respondent No.4 in both the matters.

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CORAM : B. P. DHARMADHIKARI & N. R. BORKAR, JJ. DATE : 17/12/2019.

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P.C.:

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WRIT PETITION NO.14214 OF 2018

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. Controversy is covered by judgment dated 5/10/2018 delivered by Division Bench of this Court at Bombay in Writ Petition No.4606/2018. Communication dated 1/11/2017 issued by State Government debarring directly elected surpanch from casting vote in election of up-surpanch has been quashed and set aside.

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Petitioner claims that because of said communication only he could not cast vote in election held on 21/11/2017 in which respondent No.5 has been elected as up-surpanch. Prayer therefore is to quash and set

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aside that election and to take fresh election.

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Learned APP does not dispute the legal position. She however submits that this Court has been approached belatedly.

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Learned counsel for respondent No.5 submits that the petitioner has willingly not voted in election conducted on 21/11/2017. He should have challenged the communication dated 1/11/2017 within reasonable time thereafter. Petition has been filed in October 2018 and thus there is huge unexplained delay. Provisions of Article 243 (o) of the Constitution of India are also relied upon to urge that in absence of taking recourse to election petition, direct intervention by this Court in such matters is prohibited.

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It is apparent that after providing for direct election of surpanch, the State Government came out with a notification which prohibited said surpanch from casting vote in election of upsurpanch. This notification was given effect to and because of that only the petitioner did not cast vote in election. Proceeding recorded on 21/11/2017 shows that respondent No.5 got elected by securing 6 votes while 5 votes were casted in favour of defeated candidate.

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In this situation, we find that argument of interference in election process is not relevant here. Not only this on 5/10/2018 Division Bench of this Court has quashed and set aside communication dated 1/11/2017 and thereafter present petition has been filed. Said communication could not have been challenged in election petition. We cannot in this situation hold that said petition is hopelessly belated.

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Defeated candidate has lost only by one vote and had

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petitioner be permitted to cast his vote, it might have resulted in equality of vote. Result of elections is therefore materially affected.

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In this situation, we are inclined to direct respondent to take fresh election for the post of upsarpanch in accordance with law.

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Only to facilitate that exercise we quash and set aside the election of respondent No.5 as upsarpanch. Fresh process shall be initiated and completed in next 3 months. However, considering the facts, we permit Respondent No.5 to continue to function as upsarpanch till substituted by newly elected upsarpanch.

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Needless to mention that respondent No.5 is also entitled to contest in fresh election.

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The petition is partly allowed and disposed of.

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WRIT PETITION NO.14074 OF 2018

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As meeting to elect upsurpanch has been held on 26/11/2017 and respondent No.5 has been elected as upsurpanch as he secured 7 votes while defeated candidate secured 6 votes, hence reasons given supra are squarely applicable in the present facts.

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In this situation, with similar directions and time schedule we partly allow Writ Petition No.14074/2018 and dispose it of.

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(N. R. BORKAR, J.)

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(B. P. DHARMADHIKARI, J.)

Smt. Shoba Suresh Khot v. State of Maharashtra through the Principal Secretary and Ors.

Case brief

What is this about?

What did the court decide?

Smt. Shoba Suresh Khot v. State of Maharashtra through the Principal Secretary and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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