Bombay High Court
Manubhai Paragji Vashi vs Bar Council Of India on 29 February, 2012
Author: S. A. Bobde
Bench: S.A. Bobde, R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 723 OF 2010
Manubhai Paragji Vashi
Age about 79 years, residing at
"Alankar" Building, 59, Swami
Nityanand Marg, Andheri (E),
Mumbai - 400 069. .. Petitioner
Vs.
1. Bar Council of India
21 Rouse Avenue, Ind. Area, Near
Bal Bhavan, New Delhi.
2. Bar Council of Maharashtra and Goa,
High Court Extension, 2nd Floor,
Mumbai - 400 032.
3. The Advocate General of Maharashtra
High Court, Bombay.
4. Pramod Joshi, Advocate
Advocates Association of Western India
R.Nos.18 & 36, 3rd Floor, High Court Bldg.,
Mumbai - 400 032.
5. M.T.Q. Sayyed, Advocate
having its office at Chamber No. 301,
Maruti Chambers, District Court,
Nashik and Residing at 7, Mumtaz Park,
Wadala Raod, Nashik - 9
6. Jayant D. Jaibhave, Advocate
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"Suvichar", 46A, Old Pandit Colony,
Nashik.
7. Nitin L. Chaudhari, Advocate
Lane No. 6, Juna Amalner Stand,
Dhule - 424001
8. Satish A. Deshmukh, Advocate
Shivaji Nagar, Tal. & Dist. Hingoli-431513
9. Pramod Pandurang Patil, Advocate,
156, Prabhu Ali, Bhiwandi,
Dist. Thane.
10. Shivajirao B. Chavan, Advocate
Plot No. 2, E/Ward, Shivkiran Bungalow
Mahadik Vasahat, Kolhapur.
11. Babusingh K. Gandhi, Advocate
Ramnagar, Behind LRT Commerce
College, Akola.
12. Motisingh G. Mohta, Advocate,
Near Shivaji Park, At & Post - Akola
Tal. & Dist. Akola.
13. Dr. Sureshchandra R. Bhosale, Advocate
Shree Chamber, 53/54 Shivajinagar,
Behind Dist. Court, Justice Ranade Road,
Pune - 411 005.
14. Vasant D. Salunke, Advocate
Shree Ganesh Krupa, N-4-H-9,
CIDCO, Aurangabad.
15. Ashok V. Patil, Advocate,
677, Ravindra Kawade Bldg.,
Nalegaon, Ahmednagar.
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16. Milind S. Thobde, Advocate
184 Gold Finch Peth, B/H Hotel
Ritesh, Solapur - 413007
17. Harshad V. Nimbalkar, Advocate,
Flat No. C-41, Aditya Residencey,
Behind Vimal Showroom, Mitrak
Mandal, 498, Parvati, Pune - 422009
18. Balwant N. Jadhav, Advocate
Hatle Nagar, Room No. 37,
Latur - 413512.
19. Anil Chandrabali Singh, Advocate
1001 Kingstone Palace, Chincholi
Bunder Road, Malad (West),
Mumbai - 400 064.
20. Avinash J. Bhide, Advocate
Bulsare House, Kanhere Wadi,
Near Shivaji Garden, Nashik 422001
21. Aniruddha K. Choube, Advocate
206/6/3, Nr. GPO Square,
Civil Lines, Nagpur-440001
22. Anil M. Gowardipe, Advocate
Plot No. 11, Saikrupa, Ambazari
Layout, Behind Dharampeth Science
College, Nagpur.
23. Vitthal B. Konde Deshmukh, Advocate
33 Vardai Bldg., 3rd Floor, Gokhale Road,
(South), Dadar (W), Mumbai.
24. Vipinkumar Leeladhar Bendale, Advocate
C/o L. L. Bendale, Advocate,
Kalpa Taru, 13 Dhake Colony,
Jalgaon 425001.
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25. Asif Shaukat Qureshi, Advocate
Arman, 64/A Rahatekar Wadi, Dasra Road,
Mahal, Nagpur-440002.
26. Uday P. Warunjikar, Advocate
501/502/504, C Wing, Brahmasiddhi Apts.,
Appasaheb Marathe Road, Leningrad Chowk,
Prabhadevi, Mumbai - 400 028.
27. Ahmedkhan U. Pathan, Advocate
Flat No. 24, 5th Floor, Atur Terrace,
B/Wing, 896, Nana Peth, Pune - 411002.
28. Ashish P. Deshmukh, Advocate
At & Post Shivaji Ward, Pusad,
Dist. Yavatmal - 445204.
29. Avinash B. Avhad, Advocate
19/1B/1 Dnyandeep, Near Sangam Press
Kothrud, Pune 411 029.
30. Karan D. Bhosale, Advocate
1-C Firuz Area, M. Karve Road,
Near Mantralaya, Mumbai 400 021.
Mr. M. P. Vashi, petitioner-in-person, present.
Mr. Y. S. Jahagirdar, Senior Advocate a/w Mr. A.G. Damle for respondent
nos.2 to 5.
Mr. Prasad Dhakephalkar, Senior Advocate i/by Mr. Yogeshwar Bhate for
respondent nos.6 to 8.
Mr. Anil Sakhare, Senior Advocate i/by Mr. Anil Yadav for respondent nos.
9 to 12, 14 and 15.
Mr. V.A. Thorat, Senior Advocate i/by Mr. Sandesh Patil for respondent
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nos. 17, 19 to 22.
Mr. A. A. Kumbhakoni a/w Mr. S.M. Acharya for respondent nos.16, 23,
24.
Mr. Shrihari Aney, Senior Advocate i/by Mr. Atul Singh for respondent nos.
25, 28 and 30.
Mr. Uday Warunjikar, Respondent No. 26 - in - person present.
Mr. Zakeer Khan A. Pathan for respondent no.27.
Mr. Manoj Laxman Shirsat for respondent no.18.
Mr. Sugandh Deshmukh for respondent no.13.
CORAM: S. A. BOBDE &
R. D. DHANUKA, JJ.
RESERVED ON : FEBRUARY 08, 2012
PRONOUNCED ON : FEBRUARY 29, 2012
JUDGMENT:{Per S. A. Bobde, J.)
1. The petitioner, an Advocate, has prayed that this court set aside the elections to the Bar Council of Maharashtra and Goa held on 7/1/2010 as illegal, null and void and a further direction that the respondent nos.3, 4 and 5 i.e. Advocate General of Maharashtra, Mr. Pramod Joshi, Advocate and Mr. M.T.Q. Sayyed, Advocate be ordered to continue to ::: Downloaded on - 09/06/2013 18:14:08 ::: 6 oswp-723-10.doc hold the charge of the State Bar Council till the fresh elections are held according to the provisions of law.
2. The respondent nos. 6 to 30 to the petition are Advocates elected to the Bar Council of Maharashtra and Goa in the impugned elections. In elections to the Bar Council of Maharashtra and Goa voters were supposed to compulsorily give the first preference vote to any candidate and the giving of other preferences was optional.
ig In the year 2002-2003 the Rules were amended so that every voter had to compulsorily indicate 10 preference votes on the ballot paper, failing which the ballot paper was to be treated as invalid vide Rule 32(g) (hereinafter referred to as "the 10 Preferences Rule). Another Rule i.e. Rule 6(h) (hereinafter referred to as "the Paid Up Subscription Rule") provided that the name of an Advocate would not remain on the electoral roll if he has not paid his subscription to and obtained a receipt from the State Bar Council. The Rule, regulating the method of voting, was amended so that vote would be invalid if the voter had indicated preferences to less than 10 candidates;
thus making the indication of 10 preferences compulsory.
3. The petitioner challenged the aforesaid two Rules and the ::: Downloaded on - 09/06/2013 18:14:08 ::: 7 oswp-723-10.doc elections held in March-April 2004 by filing Writ Petition No. 903 of 2004.
After a difference of opinion was resolved by a third learned Judge of this Court, the Division Bench held by a judgment dated 21/6/2007 that both the Rules i.e. Rule 32(g) and Rule 6(h) invalid and passed the following order:-
"24. For the aforesaid reasons, the answers to the question are as under:-
(A) Rule 6(h) is invalid being ultra-vires Section 49 (1)
(a) of the Advocate Act;
(B) Rule 32(g) is ultra vires Section 3(2) r/w S. 3(4) r/w S. 49 (1)(a) of the Advocates Act;
(C) The Bar Council of Maharashtra and Goa for future elections to provide polling booths apart from what is being promptly provided in the city of Mumbai also at other Courts in Mumbai where there are minimum number of voters in terms of the procedure as followed by the Bar Council out side Mumbai;
(D) Respondent No.1 to get counted the votes from the ::: Downloaded on - 09/06/2013 18:14:09 ::: 8 oswp-723-10.doc ballot papers which were declared invalid on the ground that the voters had not cast ten preference votes. The entire process to be completed within eight weeks. On such counting, if any other candidate gets more votes than Respondent 6 to 29 and petitioner, then such candidate to be declared to be elected and proportionally those from amongst the present Managing Committee who were earlier declared elected, will give weigh to the newly elected candidates. Till such time the exercise is complete, the present Managing Committee to function as the Managing Committee. The term of the Committee after declaration of the results will be the same as of the present Managing Committee.
Rule made absolute accordingly in both the Writ Petitions. There shall be no order as to costs.
Earlier the time was granted of eight weeks to complete the process. In view of the fact that the said time was expired, we direct that the entire election process will be completed within twelve weeks from today.
Rule made absolute accordingly."
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4. The State Bar Council filed a Special Leave Petition in the Supreme Court of India against the said judgment. Apparently on 18/9/2009 the State Bar Council deleted the 10 Preferences Rule and the Paid Up Subscription Rule. The State Bar Council filed Application for stay of the judgment of this court on 4/9/2007. On 21/9/2007 the Supreme Court issued notices to the respondents and stayed the operation of direction (D) Supra made by this Court, which reads as follows:-
"(D) Respondent No.1 to get counted the votes from the ballot papers which were declared invalid on the ground that the voters had not cast ten preference votes. The entire process to be completed within eight weeks. On such counting, if any other candidate gets more votes than Respondent 6 to 29 and petitioner, then such candidate to be declared to be elected and proportionally those from amongst the present Managing Committee who were earlier declared elected, will give weigh to the newly elected candidates. Till such time the exercise is complete, the present Managing Committee to function as the Managing Committee. The term of the Committee after ::: Downloaded on - 09/06/2013 18:14:09 ::: 10 oswp-723-10.doc declaration of the results will be the same as of the present Managing Committee."
This direction is, however, not in issue in this matter.
5. For the elections in question to be held in 2010, it had already been mentioned on the ballot paper that only the first preference vote was compulsory and the other votes were optional. This Court had held that the preferences Rule was bad. On 5/1/2010, the Supreme Court passed an interim order that the directions contained in Clause (B) of the order of this court is stayed. Direction (B) reads as follows:-
"(B) Rule 32(g) is ultra vires Section 3(2) r/w S. 3(4) r/w S. 49 (1)(a) of the Advocates Act"
Thus the declaration by this Court that the Rule requiring the voter to indicate ten preferences compulsorily was illegal, was stayed.
On the same day, a Special Committee of the Bar Council passed a resolution No. 15 of 2010 resolving that the Bar Council will ::: Downloaded on - 09/06/2013 18:14:09 ::: 11 oswp-723-10.doc follow the Supreme Court order at the elections. Out of 87000 voters, 47000 voters cast their votes. 4000 votes were invalidated. Later on 15/10/2011 the Supreme Court of India dismissed the SLP filed by the State Bar Council and another SLP by Shri Rajiv Patil, Advocate. The said judgment is reported in JT 2011 (12) SC 280.
6. By the present petition filed on 26/3/2010, the petitioner has challenged the election held after the interim order of the Supreme Court.
According to the petitioner, who appeared in person, elections could not have been held under the Rule which was declared invalid only because of the stay granted by the Supreme Court, particularly when the ballot papers had already been issued to all polling centers containing a note that it was not necessary to indicate 10 preferences but only one preference may be indicated. The petitioner contended that elections were deliberately and fraudulently ordered to be held on the basis that it was compulsory to mark 10 preferences. According to the petitioner, the entire election, which has been held illegal and its result is liable to be declared illegal and, therefore, is liable to be set aside and all the candidates along with the elections of all the returned candidates. The petitioner contended that the many voters who were compelled to cast 10 preferences may not have even known 10 ::: Downloaded on - 09/06/2013 18:14:09 ::: 12 oswp-723-10.doc candidates and may have forcibly given a choice not intended by them, only because it was announced that votes in which less than 10 preferences would be declared invalid. On the other hand, it was contended by Mr. Jahagirdar, Mr. Thorat, Mr. Dhakephalkar and Mr. Aney appearing for respondents that there is no illegality which can be said to have vitiated the elections, particularly, since the elections were held and had to be so held on the basis that the direction (B) of this court declaring Rule 32(g) as invalid, was stayed by the Supreme Court on 5/1/2010. According to the learned counsel, the elections that were held on 7/1/2010 could not have been held as if no order of stay was passed by the Supreme Court in regard to direction (B). It was contended by the learned counsel that the ballot papers that only the first preference vote was compulsory and other votes were optional were issued and circulated to the polling booths much before the order of stay was passed by the Supreme Court on 5/1/2010 and there was no time to recall all those ballot papers. They specifically contended that due publicity was given to the order of the Supreme Court of India and voters who are all educated Advocates could not have been misled by the note. It was lastly contended that in any even the election of all the returned candidates cannot be set aside as if all the voters who voted for the candidates were misled without any proof in each case. Further it was ::: Downloaded on - 09/06/2013 18:14:09 ::: 13 oswp-723-10.doc prayed that the petition be dismissed for non-joinder of necessary parties on account of the failure of the petitioner to join all the contesting candidates which is a requisite in election petitions.
7. Thus, the main contention on behalf of the petitioner is that when elections were held on 7/1/2010, Rule 32(g), which required the voters to indicate all the 10 preferences compulsorily had been struck down by this court and the Bar Council having thereupon deleted the said Rule could not have held the elections as if Rule 32(g) was still in existence.
Having considered the matter at length, we have no doubt that the submission must be rejected. The stay order of the Supreme Court must be given full effect to. The effect of the interim order of the Supreme Court can only be that the direction striking down Rule 32(g) is stayed and withheld from operating. For all practical purposes there was no order or direction striking down Rule 32(g) after the Supreme Court stayed it on 5/1/2010. This being the situation, the Bar Council could not have held the elections as if there was no stay order and that the declaration of this court holding Rule 32(g) ultra vires the Advocates Act is not in force.
Whenever a competent Court stays an order, the order so stayed cannot be acted upon since the effect of stay is to withhold the operation of that order.
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8. Mr. Vashi contended that after this court struck down Rule 32(g), the Bar Council deleted that Rule from the Rule book, and therefore there was, thus, no Rule 32(g) on the Rule book under which the elections could have been held, even though there was an order of stay by the Supreme Court. This submission cannot be accepted. Rule 32(g) went out of existence by the order of this court when it was declared ultra vires and struck down. That the Bar Council deleted the said Rule from the Rule book is merely consequential and in this sense ministerial and in any case the order declaring it ultra vires did not operate for its validity or efficacy on the deletion of that Rule from the Rule book. Thus, the effect of the order of stay was to withheld the operation of the direction of this court.
Certainly, the effect and consequence of stay order of the Supreme Court was not dependent on the Bar Council carrying out a consequential re-
introduction of Rule 32(g) in to the Rule book. When a court strikes down a law or Rule enacted by a body, the effect of such striking down is not postponed till that body deletes the provision from the book. Likewise, if such a direction striking down a provision is stayed by a superior court, the efficacy of the stay is not deferred till that body restores the provision into the Rule book. Directions of the superior courts do not depend, for their ::: Downloaded on - 09/06/2013 18:14:09 ::: 15 oswp-723-10.doc validity or efficacy, on being acknowledged by a party to the proceeding.
We are, therefore, of the view that on 7/1/2010 when impugned elections were held, the state of the law governing this matter was that Rule 32(g) was in existence because its striking down had been stayed by the Supreme Court on 5/1/2010.
9. Mr. Vashi contended that the Bar Council ought not to have held elections within two days of the stay by the Supreme Court, particularly, since by then the voters were under the impression that Rule 32(g) which compulsorily required the indication of 10 preferences had been struck down by the High Court. There may have been some element of confusion in the mind of some voters about whether they were required to indicate 10 preferences or not, particularly since the ballot papers contained a note not to indicate 10 preferences and the instructions from the Bar Council were that they must indicate 10 preferences. But this by itself will not result in an illegality which would vitiate the entire elections.
On the other hand, there would have been an illegality if the elections were held as if Rule 32(g) was struck down, though the Supreme Court had stayed the striking down of the said Rule. We make these observations on the basis of what transpired after the Supreme Court stayed the declaration ::: Downloaded on - 09/06/2013 18:14:09 ::: 16 oswp-723-10.doc of this court that Rule 32(g) was ultra vires. An urgent meeting of the Special Committee, comprises of the Advocate General and two other Advocates who had control over the Bar Council, was convened. The Committee was of the opinion that in compliance with the order of the Supreme Court, it was necessary to apply Rule 32(g) for the election which was scheduled for 7/1/2010, after two days. The Committee passed the resolution to the effect that it would be mandatory for the voters to cast 10 preference votes as mandated by said Rule 32(g). The Committee also decided to issue a press-note and send appropriate communications to all the District and Taluka Court Judges and Bar Associations to inform all the Advocates about necessity to comply with Rule 32(g). It is stated in the affidavit of the In-charge Secretary of the Bar Council that posters were displayed at prominent places of all the voting booths and the voters were also informed by the Presiding Officers at all the polling booths. It is stated that the candidates also informed the voters through SMSes and other modes of communication. It is, therefore, possible that when the voters cast their vote, they were aware that they had to indicate all 10 preferences. It is necessary to observe that no clear finding of fact can be given in this regard and as observed later in this judgment, whether the voters were misled or not in relation to each particular election is a ::: Downloaded on - 09/06/2013 18:14:09 ::: 17 oswp-723-10.doc question of fact that must be decided by a competent Court or Tribunal.In order to show that the elections were deliberately held to bring about confusion, Mr. Vashi submitted that the Supreme Court had merely stayed the striking down and had not directed the Bar Council to hold elections which could well have been postponed. It was contended by the learned counsel appearing on behalf of the respondents that though there was no direction to the Bar Council to hold elections on a particular date or not to hold on a particular date, the elections were held on 7/1/2010 since they were already scheduled. According to Mr. Thorat, the notice of the time and place of election had been already published throughout the State of Maharashtra and Goa, not less than sixty clear days before the date of election under Rule 16 specifying the date of nomination, scrutiny, withdrawal, polling, date of time and counting etc. Moreover, the requisite number of ballot papers had been sent to the Presiding Officers/Polling Officers of the booths under Rule 28. Thus, it had been announced on 7/8/2009 that the elections would be held on 7/1/2010. The Bar Council which was then governed by a special committee headed by the Advocate General of Maharashtra did not consider it appropriate to postpone the elections for which preparations had been made all over the two States of Maharashtra and Goa. It must be noted that the petitioner has ::: Downloaded on - 09/06/2013 18:14:09 ::: 18 oswp-723-10.doc not been able to point out the breach of any law in holding the elections within two days of the interim order of the Supreme Court. Mr. Thorat pointed out that the contents of the stay application before the Supreme Court made it clear that the stay was being sought in view of the ensuing elections and it was not pointed out by any party including the petitioner, who was also before the Supreme Court, that any difficulty that may arise if the elections were held as scheduled. Moreover, it is not possible to draw any inference of mala fides since it is not possible to say that any particular group of Advocates or candidates would have got any undue advantage by the holding of the elections within two days of the interim order. The situation was the same for all candidates throughout the two States and there is nothing to indicate that the holding of elections as scheduled could have benefited any particular group or candidates.
10. It was lastly submitted by the learned counsel for the respondents that the entire elections is not liable to be declared as vitiated and invalid, particularly, since the returned candidates have been elected to the Bar Council by an educated class of voters who had understood the effect of the order of stay of the Supreme Court. According to the learned counsel for the respondents, elections are not liable to be interfered with on ::: Downloaded on - 09/06/2013 18:14:09 ::: 19 oswp-723-10.doc the basis of suppositions of confusion, as claimed by the petitioner. In fact, according to the respondents, out of the 47000 votes that were cast, only 4000 votes were declared invalid. There is no proof that all the invalid votes were so declared invalid because the voters did not indicate all the 10 preferences. According to the respondents, if 43000 voters voted correctly, there is every reason to draw the inference that there was no widespread confusion, as claimed by the petitioner. It was also pointed out by Mr. Dhakephalkar on behalf of respondent nos.6, 7 and 8 that no case is made out in the petition that the voters had been confused as orally argued by the petitioner and that the allegations in paragraphs 23, 29 and 30 to the effect that the voters did not know 10 candidates in respect whom they were asked to indicate their preferences.
11. Mr. Vashi, on the other hand, submitted that this is a fit case for setting aside the entire elections which are vitiated as in the case of Bar Council of Delhi and anr. vs. Surjeet Singh and ors. [AIR 1980 SC 1612].
We find no merit in this contention. That was a case where Rule 3(j) to the Delhi Bar Council Election Rules was declared ultra vires and invalid and the electoral roll prepared by the Delhi Bar Council on the basis of the said Rule was found not valid in law, the Rule having resulted in exclusion of ::: Downloaded on - 09/06/2013 18:14:09 ::: 20 oswp-723-10.doc the names of about 2000 candidates. The said ratio is not applicable to the present case as the impugned elections were not held on the basis of a Rule declared to be ultra vires. In fact, they are held after giving due effect to the stay granted by the Supreme Court to the striking down of Rule 32(g).
Moreover, no voters have been excluded from the electoral roll. We find that there is a mark difference between a situation where voters are excluded from the electoral roll and prevented from voting as in the Delhi Bar Council's case and where votes are invalidated. If voters are excluded from voting and thus from contesting, the court hearing the election dispute cannot consider and speculate the situation that would have resulted if the excluded voters are allowed to vote. Whereas, where votes are invalidated and the invalidation is found illegal, the court can recount those votes after revalidation. Moreover, in the said case, out of 5000 voters, 2000 were excluded. In the present case, out of 47000 votes cast in which 4000 votes declared invalid. The submissions of Mr. Thorat in this regard are liable to be upheld.
12. There is merit in the contention of Mr. Thorat that where the challenge to a election is that votes were wrongly invalidated due to either misrepresentation etc., the question of invalidity can be examined only ::: Downloaded on - 09/06/2013 18:14:09 ::: 21 oswp-723-10.doc upon sufficient proof that the voters were either misled or forced to cast their vote wrongly. This submission undoubtedly deserve acceptance since it is not possible to presume that all voters were misled or confused. That is a question of fact which can only be decided upon evidence. In the present case, 47000 votes were cast and out of them, 4000 votes were invalidated. This means that 43000 voters cast their votes correctly. Even, as regards 4000 invalid votes, there is no proof that they were all invalidated because voters did not know that they were bound to indicate all the 10 preferences. The Bar Council of Maharashtra and Goa Election Rules 1968 prescribe a procedure for deciding a dispute as to the validity of elections vide Rule 44. Rule 50 specifically provides as follows:-
"50. No election shall be called in question for any non- compliance of the provisions of the Act or of any Rules made thereunder unless the results of the Election in so far as it concerns a returned candidate or candidates have been materially affected."
13. We are thus of the view that from the allegations made in the petition it is not possible to declare the entire elections held on 7/1/2010 as invalid and further declared the elections of each of the returned candidate ::: Downloaded on - 09/06/2013 18:14:09 ::: 22 oswp-723-10.doc to have been vitiated without any proof that the results of the election so far as that candidate is concerned have been materially affected. In Kalyan Kumar Gogoi vs. Ashutosh Agnihotri and anr. [(2011) 2 SCC 532], the Supreme Court observed, vide para 24, as follows:-
"24. It is well to remember that this Court has laid down in several reported decisions that the election of a returned candidate should not normally be set aside unless there are cogent and convincing reasons. The success of a winning candidate at an election cannot be lightly interfered with. This is all the more so when the election of a successful candidate is sought to be set aside for no fault of his but of someone else. That is why the scheme of Section 100 of the Act, especially clause (d) of sub-section (1) thereof clearly prescribes that in spite of the availability of grounds contemplated by sub- clauses (i) to (iv) of clause (d), the election of a returned candidate shall not be voided unless and until it is proved that the result of the election insofar as it concerns a returned candidate is materially affected. The volume of opinion expressed in judicial pronouncements preponderates in favour of the view that the burden of proving that the votes not cast would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate lies upon one who objects to the validity of the election. Therefore, the standard of proof to be ::: Downloaded on - 09/06/2013 18:14:09 ::: 23 oswp-723-10.doc adopted, while judging the question whether the result of the election insofar as it concerns a returned candidate is materially affected, would be proof beyond reasonable doubt or beyond the pale of doubt and not the test of proof as suggested by the learned counsel for the appellant."
In the circumstances, the prayer for declaring elections of the returned candidates as illegal is rejected.
14. Mr. Warunjikar, the respondent no.26 who has been declared elected, submitted that no confusion can be inferred from the mere invalidation of votes because the Advocate General of Maharashtra heard 136 candidates before invalidating the votes. In the view we have taken, we are not inclined to go into the question if votes have been correctly invalidated.
15. In the result, the petition is liable to be dismissed and the same is hereby dismissed. Rule discharged. No costs.
(R. D. DHANUKA,J.) (S. A. BOBDE, J.)
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