Dismissed

Prakash Narayan Harake v. Anil Kisan Walunj and Ors.

Bombay HC1 Feb 2023WP/2380/2022

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition seeking modification of a trial court order setting aside an election. The petitioner argued that under Section 15(2) of the Maharashtra Village Panchayats Act, the second-highest vote-getter should be declared elected. The judge rejected this, holding that setting aside an election mandates a fresh election under Section 11, not declaring another candidate

What did the court decide?

The writ petition challenging the trial court's judgment to declare the petitioner as elected is dismissed with no order as to costs.

Prakash Narayan Harake Vs Anil Kisan Walunj and Ors. — Election Law | Bombay HC (2023)

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Ajay

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 2380 OF 2022

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Prakash Narayan Harake,

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Age 40 Years, Occ. Business
R/o. At post Pondewadi,
Tal. Ambegaon, Dist. Pune.
At present R/o. Bhondve Tower,
F-201, Spine Road, MIDC Police Station,
Sector No.6, Moshi PMRDA, Moshi,
Pune – 412 205...Petitioner

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Versus

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1. Shri. Anil Kisan Walunj ,

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Age : 45 Years, Occu. Contractor,
R/o. Pondewadi, Tal. Ambegaon, Dist. Pune.

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2. Returning Officer (Shri. V.H. Koli),

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Age :- Adult. Occu. Service, R/o. Panchayat Samiti Ambegaon,

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Tal. Ambegaon, Dist. Pune.

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3. The Tahasildar,

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Tal. Ambegaon, Dist. Pune. .. Respondents

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Mr. Y. B. Lengare, Advocate for Petitioner.

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Mr. Hrishikesh Giri i./by Mr. Prashant M. Patil, Advocate for Respondent No.1.

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Mr. S. H. Kankal, AGP for Respondent No.3 – State.

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CORAM:MILIND N. JADHAV, J.

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DATE:FEBRUARY 01, 2023.

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JUDGMENT:

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1. The present Writ Petition takes exception to the impugned

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Judgment and Order dated 21.01.2022 passed by the Civil Judge,

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Junior Division, Ghodegaon, Tal. Ambegaon, District Pune (for short

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“the Trial Court”) in Election Petition No.01 of 2019 whereby the
election of Respondent No.1 as Sarpanch of Village Pondewadi, Tal.
Ambegaon, Dist. Pune has been set aside and seeks a further
clarification / modification of the said judgment. By the said
Judgment, the Returning Officer and Tahsildar, Tal. Ambegaon,
District Pune who are Respondent Nos.2 and 3 herein have been
directed to take further necessary steps after the Appeal period is over.

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2. Petitioner seeks modification of the impugned Judgment and Order dated 21.01.2022 to the extent that in addition to what has been directed by the learned Trial Court, this Court should further direct that the Petitioner is declared as elected to the post of Sarpanch.

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3. In order to appreciate the lis between the parties and the relief sought by the Petitioner, such of the relevant facts which are necessary for consideration are outlined herein under:-

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(i) Election for the post of Sarpanch, Village Pondewadi,
Tal. Ambegaon, District Pune was held on 26.09.2018
and result was declared on 27.09.2018. Respondent
No.2 was the Returning Officer and Respondent No.3
was the controller of the election campaign. Petitioner
and Respondent No.1 submitted their nomination
forms and stood for the election for the post of
Sarpanch. The election was held. Respondent No.1

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obtained 910 votes and Petitioner obtained 220 votes.
Respondent No.1 was elected as Sarpanch.

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(ii) At the time of scrutiny the Petitioner submitted that written objection alongwith evidence against the nomination of Respondent No.1 on the ground of suppressing material information of offences and criminal cases pending against him, despite which nomination form of Respondent No.1 was accepted.

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(iii) At that time, Petitioner filed Writ Petition No.26605 of 2018 in this Court challenging the acceptance of the nomination form of Respondent No.1. The said Writ Petition came to be disposed of with direction to institute proceedings before the appropriate forum in accordance with law.

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(iv) After declaration of the result, Petitioner instituted the Election Petition No.01 of 2019 before the learned Trial Court challenging the election of Respondent No.1 as Sarpanch under Section 15 of the Maharashtra Village Panchayats Act, 1958 (fort short “ the said Act ”). Petitioner also sought a declaration that Petitioner should be declared as Sarpanch of Village Pondewadi. Respondent No.1 has filed his written statement at

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Exhibit ‘29’ to the said Election Petition and resisted the
objections raised by the Petitioner. By the Judgment
and Order dated 21.01.2022 which is impugned in the
present Writ Petition. The learned Trial Court allowed
the Election Petition with costs and declared the result
of election dated 27.09.2018 of electing Respondent
No.2 as Sarpanch to be quashed and set aside.

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(v) In addition to above certain other facts are also
required to be placed on record namely that Petitioner
alongwith one other person namely Mr. Baban Namdeo
Walunj filed a complaint on 04.04.2019 against
Respondent No.1 before the Collector, Pune seeking his
disqualification to be a member of the Village Panchyat
under Section 14(1)(j-1) of the said Act on the ground
that he had more than two children from his two wives
namely Neelam and Geeta. According to the Petitioner,
Respondent No.1 had two daughters namely Sakshi and
Sonalifrom his first wife Neelam and third daughter
namely Durva from his second wife Geeta. Petitioner in
his complaint submitted that birth certificate of the two
daughters Sakshi and Sonali issued by the appropriate
authority about which there was no dispute and in

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addition thereto also submitted birth certificate dated
13.02.2017 issued by the Government of Maharashtra,
Health Department (Gram Panchayat Office Wagholi,
Tal. Haveli) certifying the birth of third daughter / child
Durva on 01.02.2017 which had the name of
Respondent No.1 as her father and Geeta Anil Walunj
as her mother.

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(vi)The Collector, Pune after examining the above material
and evidence of Respondent No.1 having three
daughters, passed order dated 29.01.2020 disqualifying
Respondent No.1 as Sarpanch / member of the Gram
Panchayat, Pondewadi.

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(vii) Being aggrieved, Respondent No.1 challenged the
above order of disqualification by filing the statutory
Appeal before the Additional Divisional Commissioner,
Pune. By order dated 23.02.2021, the Appellate
Authority partly allowed the Appeal and remanded the
case back to the Collector, Pune for reconsideration.

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(viii) Being aggrieved, by the order dated 23.02.2021 passed by the Additional Divisional Commissioner, Pune, Petitioner and Mr. Baban N. Walunj filed Writ Petition No.1023 of 2021 in this Court challenging the said

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order. This Court after considering the facts of the
present case and submissions made by the parties, on
15.09.2021 admitted the Writ Petition and stayed the
order dated 23.02.2021 passed by the Additional
Divisional Commissioner, Pune.

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(ix) For convenience and reference, it is deemed
appropriate to reproduce the order dated 15.09.2021
passed by this Court. The said order reads thus:-

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“ Heard learned Counsel for the parties.

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1 The present proceedings reflects the extent to which
a person can stretch his personal life to pursue his political
ambitions.

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2This is a peculiar case. Respondent No.4 is an elected
member of Grampanchayat and thereafter a Sarpanch, who was
held to be disqualified under Section 14(1)(j-1) of the
Maharashtra Village Panchayatas Act, 1959 (the ‘Act’), for having
more than two children, by an order dated 29 January 2020
passed by the Collector. The Petitioners had made a complaint
that Respondent No.4 had three children from two wives -
Neelam and Geeta. Respondent No.4 was the father of two
daughters from his first wife Neelam and father of the third
daughter - Durva, from his second wife Geeta.

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3.An appeal was preferred by Respondent No.4 from
such order passed by the Collector, which has been allowed by
the Additional Divisional Commissioner, Pune Division, by the
impugned order dated 23rd February, 2021, whereby he has set
aside the disqualification of respondent no.4, while ordering a
fresh inquiry.

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4.The disqualification provision of Section 14(1)(j-1) of the
Act reads thus:-

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“14. Disqualification. -

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(1) No person shall be a member of a Panchayat or
continue as such, who:-

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to

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(j) .... .... .... .... .... .... .... .... .…

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(j-1) has more than two children]

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Provided that, a person having more than two children
on the date of commencement of the Maharashtra
Village Panchayats, and the Maharashtra Zilla
Parishads, and Panchayat Samitis (Amendment) Act,
1995 (hereinafter in this clause referred to as “the date
of such commencement”), shall not be disqualified
under this clause so long as the number of children he
had on the date of such commencement does not
increase:

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Provided further that, a child or more than one child
born in a single delivery within a period of one year
from the date of such commencement shall not be
taken into consideration for the purpose of
disqualification mentioned in this clause; or].”

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5.After hearing the learned Counsel for the parties, on
the admission of this Petition and on interim reliefs, it prima
facie appears that the Additional Divisional Commissioner was
wholly unjustified in doing so. The reasons for this interim order
are hereafter discussed.

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6.On 26th September, 2012, elections of the Pondewadi
Gram Panchayat, were held. Respondent No.4 – Anil Kissan
Walunj contested the election from Ward No.999 which was
reserved for Sarpanch and was elected.

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7. The Petitioners filed a complaint on 4th April, 2019,
against Respondent No.4. The case of the Petitioners-
Complainants before the Collector was of Respondent No.4 being
disqualified to be a member of the Village Panchayat under
Section 14(1)(j-1) of the Act i.e. on the ground that he had more
than two children from his two wives namely Neelam and Geeta.
Petitioner contended that Respondent No.4 had two daughters
namely, Sakshi and Sonali from his first wife Neelam and the
third daughter Durva from his second wife Geeta. There was no
dispute about the birth certificates of the two daughters – Sakshi
and Sonali. Also the Government of Maharashtra, Health
Department (Gram Panchayat Office Wagholi, Taluka Haveli )
issued a birth certificate dated 13th February, 2017, certifying the
birth of the third child Durva on 1st February, 2017. The
certificate bears Respondent No.4’s name as her father and Geeta
Anil Walunj as her mother.

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8.The Collector, Pune examining the materials before
him and the clear evidence of Respondent No.4 having three
daughters passed an order on 29th January, 2020, disqualifying
Respondent No.4 as a Sarpanch/ Member of Grampanchayat,
Pondewadi. This order of the Collector was challenged by
Respondent No.4 in an Appeal before Respondent No.2 -
Additional Divisional Commissioner, Pune, who by the impugned
order dated 23rd February, 2021 has partly allowed the Appeal.

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9.Mr. Lengare, learned Counsel for the Petitioners
submits that the impugned order passed by the Additional
Divisional Commissioner Pune is ex-facie, illegal inasmuch as
there was no ground whatever for the said authority to set aside
the dis-qualification order when there was unimpeachable
material on record pointing out that indisputedly Respondent
No.4 had two daughters – Sakshi and Sonali from his first wife
Neelam, and the third child – Durva from the second wife Geeta.
The documents also indicated that both the marriages were
subsisting. The Petitioners placed on record birth certificates of
all the three daughters including of the third child – Durva,
which showed Respondent No.4 to be the father.

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10. Mr. Lengare, has also drawn the Court’s attention to a
Marriage Petition No.407 of 2014 filed by Respondent No.4
against his second wife – Geeta whereby he prayed for restitution
of conjugal rights. The said Petition was filed on 27th October,
2014. According to the Petitioners, the filing of such Petition by
Respondent No.4 went to show that Geeta was his wife. Mr.
Lengare has also placed reliance upon a statement made by
second wife – Geeta wherein the record shows that she had
married Respondent No.4 and from the said marriage, they have
a gird child named Durva. These documents were part of the
enquiry before the Collector. Thus, there was sufficient material
which could show that Respondent No.4 has third child namely
Durva from his second wife Geeta.

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11Mr. Lengare has also argued that, significantly, to get
over all these admitted facts and after the Collector passed the
order dated 29th January, 2020 disqualifying Respondent No.4,
belatedly, on 25th February, 2020 Respondent no.4 filed a suit in
the Court of Civil Judge at Ghodegaon against his second wife
Geeta and the third child Durva (Defendant Nos. 1 and 2
therein), praying for a declaration that Defendant No.2 – Durva
is not his child and that the documents showing Durva to be his
daughter be declared to be false and bogus. Interestingly, no
interim relief was granted in the said suit. The said suit is
pending before the Civil Court.

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12Considering the majority of the above indisputed
facts, in my opinion, there was more than sufficient material on
record in the enquiry as conducted by the Collector, sufficient for
him and for any reasonable body of persons to come to a
conclusion that Respondent No.4 was married to Geeta and that
third child Durva was their third daughter. There was nothing on
record to indicate that the birth certificate issued in favour of the
third daughter Durva showing Respondent No.4 as her father
could be said to be illegal or not acceptable in law. It is, hence,
prima facie, difficult to accept the view taken by the Additional
Divisional Commissioner to upset the Collector’s order, on an
extremely feeble reasoning, when he gives a weight-age to the
suit filed by Respondent No.4 against the second wife and minor
daughter Durva by discarding the abundant material, and that
the third daughter Durva was Respondent No.4’s daughter.

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13In my prima facie opinion, learned Counsel for the
Petitioners appears to be correct in his contention that the
reasons which are set out by the Additional Divisional
Commissioner, Pune in passing the impugned order are in fact,
contrary to the record and far from the satisfactory to upset the
dis-qualification of Respondent No.4 as a member of the Village
Panchayat as ordered by the Collector. It is surprising how the
Additional Divisional Commissioner, Pune in the impugned order
attributes relevance to the subsequent suit filed by Respondent
No.4, challenging issuance of the birth certificate in favour of
daughter – Durva, indicating his name along with wife Geeta to
be the parents of daughter – Durva. It was quite clear that the
suit so filed by Respondent no.4 was purely an afterthought and
intended to pursue his political ambitions. The Additional
Divisional Commissioner was quite adventurous in setting aside
the dis-qualification of Respondent No.4 as seen from the facts in
hand.

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14. In the above circumstances, Petition would require
final hearing.

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15.Hence, Admit.

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16.Pending the final hearing of the Petition, the
impugned order dated 23rd February, 2021 passed by the
Additional Divisional Commissioner, Pune shall remain stayed.

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17 Respondents to file reply affidavits within a period of
six weeks from today. Liberty to the parties to apply after the
pleadings are complete.”

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3.1. In the above facts and circumstances of the present case, Petitioner has invoked the provisions of Section 15(2) of the said Act and has sought modification of the Judgment and Order dated 21.01.2022 to the extent that this Court should declare the Petitioner

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as elected to the post of Sarpanch for the remainder of the tenure of
Village Pondewadi Gram Panchayat (Ward No.999 reserved for
Sarpanch).

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4. Mr. Lengare, learned Advocate for Petitioner would submit

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that in so far as Respondent No.1’s election as Sarpanch is concerned,
Petitioner has raised objection against the Respondent No.1 contesting

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the said election even before the election was held and when the
nomination form was filed by Respondent No.1. He would submit that
Respondent No.1 was guilty of non-disclosure of the offences
registered against him under Sections 107 and 108 of the Indian Penal
Code, 1860 (for short “IPC”) read with Section 26(1)D, 26(1)F,
26(1)G and 26(1)H of the Indian Forest Act, 1927 and Section 9 of
the Wild Animal Protection Act, 1972 which was not disclosed by
Respondent No.1. Further Respondent No.1 failed to disclose his
profession as a Contractor and further offences registered against him
under Sections 376(1), 496, 504 and 506 of the IPC read with Section
4 of the Protection of Children from Sexual Offences Act, 2012 (for
short “POCSO Act”). He would submit that Petitioner has submitted
copies of the First Information Reports and charge sheet in support of
his complaint / objections against Respondent No.1.

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4.1. In that view of the matter, he would submit that the impugned order has been passed in the Election Petition after due consideration of the material evidence on record has been correctly passed against Respondent No.1 whereby the election of Respondent No.1 has been set aside. He would thus submit that as a consequence of setting aside of the election of Respondent No.1 it is incumbent and also mandatory to declare the Petitioner elected as Sarpanch in place of Respondent No.1 which has not been done so in the impugned

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Judgment and Order dated 21.01.2022. He has placed reliance upon
the provisions of Section 15(2) of the said Act in support of his above
propositions which reads thus:-

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“15(2).Any enquiry shall thereupon be held by the Judge
and he may after such enquiry as he deems necessary pass an
order, confirming or amending the declared result, or setting
the election aside. For the purposes of the said enquiry the said
Judge may exercise all the powers of a Civil Court, and his
decision shall be conclusive. [If the election is set aside, a date
for holding a fresh election shall forthwith be fixed under
Section 11.].”

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4.2. In addition thereto, he has also placed on record a decision of the Court of Civil Judge, Junior Division, Kudal in Election Petition No.01 of 2015 in the case of Sunita Waman Kalelkar Vs. Returning Officer and Anr. , delivered on 21.12.2015 in an Election Petition under Section 15(1) of the said Act and contended that the facts of the said case / decision are identical to the present case and considering the provisions of Section 15(2) of the said Act, it is incumbent upon the learned Trial Court while deciding the Election Petition to declare the Petitioner herein as elected for the post of Sarpanch. He has placed reliance on Paragraph Nos.28 to 30 of the said decision which are reproduced herein under:-

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“28.The arguments have to be scrutinized on the basis of two
principles i.e. throw away votes and interpretation of statutes,
as in Section 15(2) “or” is used between the terms “amending
the declared result” and “setting the election aside”. In case of
principle of throw away votes, if any elected candidate’s
election is set asided for want of qualification, even if voters
who voted in favour are not aware about it, such a votes are
throw away votes and cannot be taken into account against
other persons contesting against him. But this principle now

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does not hold good ground and it is settled that fresh election
should be ordered.

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29.Regarding the question of interpretation the word “or”
does not generally mean “and” and “and” does not generally
mean “or”, but those words can be read vice versa if obliged by
intention of the statute. In this matter it is admitted that only
two persons i.e. petitioner and respondent Ankita contested the
election from the category of woman from backward class.

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The Section 15(2) of the Act is reproduced here as -

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“ Sec.15(2)Any enquiry shall thereupon be held by the Judge and he may after such enquiry as he deems necessary pass an order, confirming or amending the declared result, or setting the election aside. For the purposes of the said enquiry the said Judge may exercise all the powers of a Civil Court, and his decision shall be conclusive. If the election is set aside, a date for holding a fresh election shall forthwith be fixed under Section 11.”

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Thus three contingencies provided in the Act. Firstly Judge may
confirm the election, amend the declared result or set the
election aside. First contingency is covered if the petition is
dismissed. The second contingency is covered by the situation
like the present one, wherein only two persons petitioner and
respondent, contested the election, there is no scope for third
person. The last contingency in my opinion is in respect of an
election where there are more than two persons contested the
election. Therefore, in last two contingencies in which petitions
have to be allowed the word “or” is used in between them, it
needs to be construed as “and” and as such rather than
declaring fresh elections the petitioner needs to be declared as
elected by setting aside the election of respondent Ankita and
amending it. The Act obliged to do so by express implication
exerting its intention in clear terms.

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30.In view of above discussion it is established that
respondent Ankita was under qualifying age when contested the
election and her election is not valid. So also in view of above
legal position the petitioner needs to be declared elected.
Therefore, I recorded my findings on Point No.1 in the negative
and Point No.2 in the affirmative, accordingly order-

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ORDER

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A. Petition is allowed.

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B.The election of Respondent No.2, Kum. Ankita Gurunath
Nevagi, as a Member of Group Village Panchayat of Gothos,
from the category of Backward Class (Woman), stands set
asided and petitioner Sou. Sunit Waman Kalelkar, is herewith
declared as elected for the said post.

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C.The copy of this order shall be sent to Collector,
Sindhudurg.

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D.No order as to costs.”

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4.3. Next he has placed reliance upon another decision of the Rajasthan High Court in the case of Ishar Ram Vs. Padamnath and Ors. 1 decided on 19.09.1983 and contended that when there are two contestants in an election and out of which one is disqualified, then the other candidate is entitled to be declared as elected.

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4.4. He has also placed reliance on the decision in the case of Konappa Rudrappa Nadgouda Vs. Vishwanath Reddy and Anr. 2 and contended that the Supreme Court has also endorsed the above view that on declaration of an election as void, the votes cast in favour of the elected candidate must be treated as thrown away votes and as there was no other contesting candidate, the Petitioner should be declared as elected to the seat.

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5. PER-CONTRA , Mr. Giri, learned Advocate for Respondent No.1 has drawn my attention to the Affidavit-in-Reply dated 02.12.2022 and contended that pursuant to the impugned Judgment and Order dated 21.01.2022 read with the provisions of Section 15(2) of the said Act it is incumbent upon the Petitioner to have approached the concerned authorities as directed in the said order for conducting fresh election. However, considering the fact that the Petitioner alongwith Baban N. Walunj has already approached this Court in Writ

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1 1983 DGLS (Raj.) 190

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2 AIR 1969 SC 447

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Petition No.1023 of 2021 with respect to the same election and stay
order having been obtained staying the order of the Appellate Forum’s
order, the Petitioner cannot seek any modification of the impugned
order at this stage. He would submit that modification of the order
and declaring the Petitioner to be elected as Sarpanch in the impugned
order would necessarily affect the substantive right of Respondent
No.1 in the pending Writ Petition No.1023 of 2021 filed by the
Petitioner himself wherein a stay is in operation which is infact in
favour of the Petitioner. He would submit that Petitioner should have
ideally sought immediate hearing and disposal of the Writ Petition
No.1023 of 2021 filed by the Petitioner in such circumstances and
approached the Competent Authority for conduct of fresh elections in
accordance with the statutory provisions of law.

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5.1. Finally, he would submit that on a bare reading of the provisions of Section 15(2) of the said Act it is contemplated that if the election is set aside, a date for holding a fresh election shall forthwith be fixed under Section 11 of the said Act. However, he would submit that in view of the substantive interim order passed by this Court admitting the Petitioner’s Writ Petition No.1023 of 2021, unless and until the said Writ Petition is decided, the authorities would wait for the outcome of the said decision until declaring a fresh election. In that view of the matter, he would submit that the present Writ Petition deserves to be dismissed.

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6. Mr. Kankal, learned AGP appearing for Respondent No.3 has drawn my attention to the Affidavit-in-Reply dated 03.12.2022 filed by Respondent No.3 – Tahsildar, Ambegaon, Tal. Ambegaon, District Pune and contended that considering the aforementioned facts an appropriate order be passed by this Court in the present Writ Petition. He has drawn my attention to paragraph No.6 of the Affidavit-in-Reply and contended that reading of Section 15(2) of the said Act does not envisage any provision for declaring the candidate who has got the second highest number of votes in the election as having been elected in the event if the election proceedings are set aside. He would submit that once the election is set aside, a date for holding a fresh election is required to be fixed forthwith under Section 11 of the said Act. He would submit that in the present case though the substantive order challenged in the Writ Petition is passed on 21.01.2022 setting aside the election, this Court is already seized with another Writ Petition filed by the Petitioner alongwith one another person challenging the same election namely Writ Petition No.1023 of 2021 wherein the order dated 15.09.2021 staying the order of the Appellate Authority is in operation. He would submit that the said order was in existene on the date on which the present impugned Judgment and Order dated 21.01.2022 was delivered. In that view of the matter, he would submit that appropriate order be passed by this Court in accordance with law.

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7. I have heard Mr. Lengare, learned Advocate for Petitioner; Mr. Giri, learned Advocate for Respondent No.1 and Mr. Kankal, learned AGP for Respondent No.3 and with their able assistance perused the record of the case. Submissions made by Advocates / AGP has received due consideration of this Court.

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8. On the above facts the controversy is narrowed down to the interpretation of the provisions of Section 15(2) of the said Act. For convenience, Section 15(2) is reproduced herein under:-

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“15(2).Any enquiry shall thereupon be held by the Judge
and he may after such enquiry as he deems necessary pass an
order, confirming or amending the declared result, or setting
the election aside. For the purposes of the said enquiry the said
Judge may exercise all the powers of a Civil Court, and his
decision shall be conclusive. [If the election is set aside, a date
for holding a fresh election shall forthwith be fixed under
Section 11.].”

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9. Perusal of the above provision clearly shows that in the event if the election is set aside, a date for holding the fresh election shall forthwith be fixed under Section 11 of the said Act. Mr. Lengare has however laid thrust on the opening lines of the said provision namely “………. pass an order, confirming or amending the declared result, or setting the election aside …………..”. The said submission cannot be accepted to mean that there is a power contained in Section 15(2) of the said Act to amend the declared result to the extent that the candidate who has secured the second highest number of votes

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should be declared as elected in the event if the election result is set
aside. If such an interpretation as put forth and vehemently argued
by Mr. Lengare is accepted, it would render the later part of the
aforesaid provision namely “………….. if the election is set aside, a
date for holding a fresh election shall forthwith be fixed …………….”
as nugatory and complete redundant. This cannot be the intention of
the legislature. It is trite that election statutes are required to be
interpreted strictly as they stand without imputing any explanation or
interpretation contrary to what is stated in the statute. The provision
of Section 15(2) of the said Act as seen are plainly simple and cannot
be interpreted to mean that in the event if the election is set aside, the
election result should be amended to the extent of declaring the
candidate securing the second highest number of votes as being
elected for the remainder of the term / tenure. In fact there is no such
provision contemplated by the said enactment.

¶132

9.1. In that view of the matter, I am not inclined to accept the submissions of Mr. Lengare.

¶133

10. Mr. Lengare has further emphasized on the word “…………….. amending the declared result…………..” as appearing in Section 15(2) of the said Act and would submit that this would empower the Court to declare the Petitioner (second highest number of votes) as the elected candidate, once the election of Respondent

¶134

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¶135

4(i).wp.2380.22.doc

¶136

No.1 is set aside.

¶137

10.1. However, in view of the above observations and findings, I am once again not inclined the accept the submissions made by Mr. Lengare. In so far as the above proposition is concerned, once it is clear that in the substantive provision that if the election is set aside, a date for holding a fresh election shall forthwith be fixed under Section 11 of the said Act, there is no question about declaring the Petitioner as having being elected for the remainder of the term. In the impugned Judgment and Order, the learned Trial Court has therefore rightly directed Respondent Nos.2 and 3 to take further steps after the appeal period is over.

¶138

11. In view of the above observations and findings, the challenge to the Judgment and Order seeking modification thereof to the extent of declaring the Petitioner as having been elected as Sarpanch pursuant the setting aside of the election of Respondent No.1 stands squarely rejected. Writ Petition fails.

¶139

12. Writ Petition is dismissed.

¶140

13. However, there shall be no order as to costs.

¶141

[ MILIND N. JADHAV, J. ]

¶142

Digitally signed by AJAY AJAY TRAMBAK TRAMBAK UGALMUGALE UGALMUGALE Date: 2023.06.02 17:42:10 +0530

¶143

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Prakash Narayan Harake v. Anil Kisan Walunj and Ors.

Case brief

What is this about?

What did the court decide?

Prakash Narayan Harake v. Anil Kisan Walunj and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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