Allowed

Sandip S/O Sahebrao Tekade and Another v. the Collector, Akola and Others

Bombay HC2 May 2023WP/252/2023

Case brief

AI extract

What is this about?

In a writ petition challenging the election of an Up-Sarpanch, the court held that since an interim order barring a petitioner from voting was vacated with a direction to follow consequences, and the petitioner admitted voting for her would have resulted in equality favoring the petitioner, the interests of justice mandated a fresh election.

What did the court decide?

Minutes of Special Meeting dated 4/1/2023 are quashed; Respondent No.4 ceases to hold office; Fresh election to be held within ten days.

Sandip S/O Sahebrao Tekade and Another Vs the Collector, Akola… — Election Law | Bombay HC (2023)

Judgment

WP 252-2023

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR.

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WRIT PETITION NO. 252 OF 2023

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Sandip s/o Sahebrao Tekade, aged about 40 years, Occ. Member of Gram Panchayat, R/o at post Morgaon Sadijan, Tah. Balapur, District – Akola.

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Radha Vasanta Solanke, aged about 38 years, Occ. Sarpanch of Gram Panchayat, R/o at post Morgaon Sadijan, Tah. Balapur, District – Akola.

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PETITIONERS

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.....VERSUS..…

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The Collector, Akola. 2. The Returning Officer/ Extension Officer, Balapur Panchayat Samitee, Balapur, District – Akola for the Election of Upa-Sarpanch, Village Morgaon Sadijan, Tah. Balapur, District – Akola.

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The State Election Commission, Maharashtra State, Mumbai through its Commissioner.

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Yogesh s/o Pralhad Band, aged about Major, Occ. Upa-Sarpanch of Gram Panchayat, R/o at post Morgaon Sadijan, Tah. Balapur, District – Akola.

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R ESPONDENTS

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Shri A.J. Gilda h/f Shri N.B. Kalwaghe, Advocate for the petitioners. Ms N.P. Mehta, Assistant Government Pleader for respondent No.1/ State. Shri J.B. Kasat, Advocate for respondent Nos.3.

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CORAM : A. S. CHANDURKAR AND M.W. CHANDWANI, J J .

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D ATE : 2/5/2023 ORAL JUDGMENT (PER : A.S. CHANDURKAR, J.)

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RULE . Rule made returnable forthwith and heard the learned counsel for the parties.

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Judgment

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WP 252-2023 2

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Respondent No.4 despite service has not chosen to contest the present proceedings.

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Petitioner No.1 and respondent No.4 were the candidates for the post of Up-Sarpanch of the Gram Panchayat, Morgaon Sadijan. The said elections were to be held on 4/1/2023. One of the Members of the Gram-Panchayat had challenged the communication dated 30/9/2022 by which the Sarpanch had been granted right of voting in the elections for the post of Up-Sarpanch. The said Member had preferred Writ Petition No. 12/2023 and by an interim order dated 3/1/2023, direction No.1 in the communication dated 30/9/2022 to the extent it permits the Sarpanch to vote in the election of Up-Sarpanch in the first round was held to be non-operative. In the elections that were held on 4/1/2023, respondent No.4 was elected with a difference of one vote. Subsequently, the said Writ Petition came to be withdrawn and by relying upon the order passed in Writ Petition No. 23/2023 (Pradip s/o Tekchand Shahare and others Vs. The State Election Commission through its Secretary and another) decided on 4/1/2023, the ad-interim order was vacated. It was stated that the consequences would accordingly follow. In this backdrop, the petitioners have raised challenge to the minutes of the Special Meeting dated 4/1/2023 to the extent respondent No.4 has been held to be elected as Up-Sarpanch.

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It is submitted by the learned Counsel for the petitioners that the Sarpanch could not have been restrained from voting in the election of Up-Sarpanch which aspect has been considered and clarified in Writ Petition No. 23/2023. Since a direction was issued in Writ Petition No. 12/2023 by vacating the ad-interim order that consequences would follow, it is submitted that had petitioner No.2 voted in the said election, there would have been equality of votes. It is thus prayed that a fresh

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Judgment

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WP 252-2023 3

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meeting to elect Up-Sarpanch be conducted by setting aside the minutes of the Special Meeting held on 4/1/2023.

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The learned Counsel for respondent No.3 submits that this situation has arisen in view of the ad-interim order passed on 3/1/2023. Since that ad-interim order has been vacated with a direction that consequences would follow, it is for respondent No.4 to challenge the said decision. As stated, respondent No.4 has not chosen to contest the petition.

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On hearing the learned Counsel for the parties, we find that legal position is clear in view of the decision in Salma Bi Vs. Collector, Buldana and Others [(2022) 2 Bom CR 337] wherein the effect of restoring status-quo ante has been considered as a consequence of the adinterim order being vacated. It is seen that petitioner No.2 could not vote in the elections of Up-Sarpanch in view of the interim order. Since that interim order has now been vacated with a direction that consequences would follow, it is clear that the right of respondent No.4 to continue as Up-Sarpanch is under a cloud. Since petitioner No.2 has categorically submitted that had she been permitted to vote, there would have been equality of votes and casting vote would have been in favour of petitioner No.1, we find that the interests of justice would require a fresh election to be held for the post of Up-Sarpanch. As a consequence of the interim order being vacated, the minutes of the Special Meeting dated 4/1/2023 to the extent the Up-Sarpanch has been elected are thus quashed.

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Accordingly, it is directed that respondent No.4 would cease to hold the office of Up-Sarpanch. Respondent Nos. 1 and 2 shall take necessary steps to hold fresh election for the post of Up-Sarpanch within a period of ten days from today.

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Rule is made absolute in the aforesaid terms. No costs.

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Judgment

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WP 252-2023 4

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An authenticated copy of this order be supplied to the learned Counsel for the parties.

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( M.W. CHANDWANI, J. ) ( A.S. CHANDURKAR, J. )

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SUMIT

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Digitally signed bySUMIT CHETAN AGRAWAL Signing Date:04.05.2023 14:45

Sandip S/O Sahebrao Tekade and Another v. the Collector, Akola and Others

Case brief

What is this about?

What did the court decide?

Sandip S/O Sahebrao Tekade and Another v. the Collector, Akola and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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