DINKAR KRISHNA KHARADE Vs. JYOTIRAM TUKARAM KHARADE

JUDGEMENT

(1.) The short question involved in this petition is whether the learned Judge while trying the election petition under section 15 of the Bombay village Panchayats Act, 1958 (hereinafter referred to as the Act) could have resorted to the procedure prescribed by second proviso to sub-clause (b) of sub-section (5) of the said section. In the present case.

(2.) The elections to the Grampanchayat were held on December 23, 1986 and the counting of votes polled took place on December 2, 1986. The petitioner and respondent No. 1 were the rival candidates contesting from Ward No. 1. At the time of the counting of votes, respondent No. 6-Election Officer found that both had got equal number of votes viz. 93 each. As required by the Rules, he therefore drew the lots and declared the petitioner elected to the Grampanchayat from the said Ward.

(3.) Respondent No. 1 thereafter filed an election petition under the said section 15, challenging the validity of the election of the petitioner on the only ground that some votes which were counted in favour of the petitioner were invalid while some others which were not counted in favour of respondent No. 1 were valid. In the petition the parties led no evidence but agreed that they would abide by the result of the recounting, of the votes. For the purpose of recounting, a Commissioner was appointed and he submitted his report which showed that the counting of votes done by respondent No. 6. Election Officer was proper and no change in the votes polled by the petitioner and Respondent No. 1 was required. On the basis of this report, the Judge ought to have dismissed the petition. However, by taking a mistaken view of the provisions of the second proviso to sub-section (5)(b) of section 15, he proceeded to decide the result of the petition by drawing a lot. In the lot so drawn respondent No. 1 was declared successful and the learned Judge by his impugned order of April 10, 1981 set aside the election of the petitioner and declared Respondent No. 1 as the successful candidate.