Letters Patent Appeal No.218 of 2002,WITH Civil Application No.240 of 2002

28th June, 2002

Petitioner Counsel: Mr. V. K. CHAUDHARI
Respondent Counsel: Mr. C. R. SONAWANE, Mr. G. S. GODBOLE

JUDGMENT

C. K. THAKKER, CJ.:- This appeal is filed against the dismissal of Writ Petition No.2347 of 2001. Before the Learned Single Judge three petitions came to be filed making grievance against an order passed by District Election Officer.

2. The complaint before the learned Single Judge was that the order of repoll of five reserved seats was illegal and contrary to law.

3. The learned Single Judge observed in the Order that certain irregularities were found so far as the poll in reserved constituencies was concerned. In respect of reserved constituencies, therefore, repoll was ordered in consonance with the provisions of Maharashtra Cooperative Societies Act, 1960, and the Maharashtra Cooperative Societies Rules, 1961. Accordingly, an order of repoll was passed keeping in mind the provisions of Section 73 of the Act and Rule 56A of the Rules in respect of four reserved constituencies.

4. Several contentions were raised before the learned Single Judge. The learned Single Judge after considering the order passed by the authority, which was based on the report submitted by the Returning Officer, held that chaos prevailed when counting of reserved constituencies was going on. It was in respect of four reserved seats, two for women, one for SC/ST and one for economically weaker section. He, therefore, held that in respect of four reserved seats repolling was necessary. The said order is challenged before us in this appeal.

5. The learned counsel for the appellant contended that the action was illegal and contrary to law. The learned Single Judge ought to have considered that an alternative remedy of filing of election dispute laid down under the Act was not available to the petitioner. It was submitted that so far as petitioner no.1 is concerned, he could have invoked Article 226 of the Constitution. No result of election of general candidates could have been declared. Hence, the election and declaration of result was contrary to law.

6. So far as petitioner no.2 is concerned, since he belonged to reserve class, and since repolling was ordered, only in these constituencies, he had a grievance. Section 91 which provides for election dispute, was not available to petitioner no.2, for direction to hold election in all constituencies. It was also submitted that even if the District Returning Officer was satisfied that repolling was necessary, the order which could have been passed would be in respect of entire election and not only for reserved seats. It was, therefore, submitted that the order was illegal which is liable to be set aside.

7. A grievance was also made that by no stretch of imagination, it can be said to be abuse of process of law and hence the observations made by the learned Single Judge against the petitioners and award of costs were illegal, and to that extent the order deserves interference.

8. The learned Assistant Govt. Pleader supported the order passed by the District Deputy Registrar. He submitted that in exercise of statutory power, an action was taken and the learned Single Judge also found that it was in consonance with law.

9. The learned Counsel for contesting respondents submitted that the order was strictly in conformity with the provisions of the Act and the Rules. The petitioners, who are appellants before this Court, have lost the election and now with a view to deprive the candidates who had been successful at the election have approached this Court. There is thus abuse of process of law on their part. He also submitted that the learned Single Judge after considering the material on record has observed that the action of the authority was according to law and refused to interfere. Such order does not require interference.

10. Considering the facts and circumstances, in our opinion, it cannot be said that the action taken by the authorities and confirmed by the learned Single Judge deserves interference. In the report submitted by the Returning Officer and accepted by the Election Officer, it was clearly stated that when counting of votes for general seats was going on, no difficulty was found. Everything was done properly and even results were declared. To that extent, therefore, it cannot be said that the procedure adopted by the authorities deserves interference.

11. It was also clear from the material placed on record and considered by the authorities as also by the learned Single Judge that the difficulties arose when the counting was going on for reserved constituencies. Reasons were recorded by the Returning Officer submitting the report which was accepted by the Election Officer holding that chaos prevailed which necessited repolling. Keeping in mind these circumstances, an order of repoll was made. The learned Judge, in our view, was right in observing that this Court was not exercising appellate jurisdiction but exercising power of judicial review. Once the learned Single Judge found that the action of the authorities was in consonance with law, it would not be held that the learned Single Judge has committed any error of law or of jurisdiction. So far as costs is concerned, it was within the discretion of the learned Single Judge.

12. Finally, the learned counsel for the appellant submitted that the term of the old managing committee was over and hence an Administrator may be appointed. In view of the fact that the election has already been held and so far as the general seats are concerned, the result is also declared, the authorities will have to take an appropriate action in accordance with law, keeping in mind the relevant provisions of the Act and the Rules.

13. In our opinion, therefore, the order passed by the authorities and confirmed by the learned Single Judge does not deserve interference. We, therefore, see no ground to interfere with the same and the Letters Patent Appeal is dismissed. No Order as to costs.

14. No Order on Civil Application in view of the order passed in appeal.

Appeal dismissed.