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Baburao Shankarrao Wadikar and ors. Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 247 of 1985
Reported in1985(2)BomCR655
ActsMaharashtra Municipalities Election Rules, 1966 - Rule 4 and 4A; Constitution of India - Article 226; Maharashtra Municipalities Act, 1965 - Sections 21
AppellantBaburao Shankarrao Wadikar and ors.
RespondentState of Maharashtra and ors.
Appellant AdvocateU.B. Bindwade, Adv. and ;Basava Raj Patil, Adv.
Respondent AdvocateS.S. Choudhari, Govt. Pleader, for respondent Nos. 1 to 3, ;A.B. Kerosakar and ;B.N. Bajpai, Advs. for respondent Nos. 6 and 8, ;A.G. Godhamgaonkar and ;P.G. Godhamgaonkar, Advs. for respondent No. 7,
election - nomination - rule 4 and 4a of maharashtra municipalities election rules, 1966, article 226 of constitution of india and section 21 of maharashtra municipalities act, 1965 - petitioners prevented from filing nomination paper - sought election to be declared void - none from petitioner's side could file nomination whereas all from respondent's side successful in filing nomination - court directed fresh election and for that purpose to reappoint and refix scheduled dates. - - this has become absolutely necessary to instill the faith of the people in the democratic principle as well as in the system of administration of justice. the people, therefore, were obviously happy to have a popular body to control the working of that town. according to them and which is also not.....v.s. kotwal, j.1. the episode in this proceeding is disturbing as also alarming and it has an undercurrent that at very level a feeling of frustration or helplessness was sought to be exhibited. the episode has very severe dimensions and its impact is equally severe so much so that it has practically reduced the machinery in democratic principles almost to a mockery. if this undercurrent of frustration and haplessness is allowed to be carried forward even on this forum, it would add insult to the injury and furthermore the facts are so manifestly alarming that those contribute in making the present proceeding as manifestly a fit case where the technicalities should not be allowed to over-shadow the interest of justice and what is more important is that in such situation, though are rare.....

V.S. Kotwal, J.

1. The episode in this proceeding is disturbing as also alarming and it has an undercurrent that at very level a feeling of frustration or helplessness was sought to be exhibited. The episode has very severe dimensions and its impact is equally severe so much so that it has practically reduced the machinery in democratic principles almost to a mockery. If this undercurrent of frustration and haplessness is allowed to be carried forward even on this forum, it would add insult to the injury and furthermore the facts are so manifestly alarming that those contribute in making the present proceeding as manifestly a fit case where the technicalities should not be allowed to over-shadow the interest of justice and what is more important is that in such situation, though are rare by itself but nonetheless real in effect, the Court cannot assume the role of a passive and silent spectator. This has become absolutely necessary to instill the faith of the people in the democratic principle as well as in the system of administration of justice. In view of the heavy dimensions and the various shades of the controversy generated by the parties and in the context of certain settled principles we have been extremely cautious and careful to assess the situation before arriving at a particular decision. It is with this prelude that we refer to the factual aspects in the instant case.

2. A hot contest in all types of election is not an un-usual feature. However, the said contest had developed such distorted edges that ultimately it resulted into causing panic so much so that about 18 persons sustained injuries and when they knocked the doors of different machineries they had to come with frustration because each agency felt that no protection could be given to them. A small town Murum located in Osmanabad District prominently figures in this proceeding. Elections to the Municipal Council to the said town were announced as we are told that till that day the same was being administered by the administrator. The people, therefore, were obviously happy to have a popular body to control the working of that town. This happiness, however, was short-lived because it could not be translated into action and it could not materialise. As per the relevant provisions of the Maharashtra Municipalities Act, 1965 certain formalities are required to be observed. Different Wards are to be carved out for which purpose certain guidelines are framed with reference to the population. Electoral process is to be prepared for which certain formalities are to be observed. A voting right accrues in favour of a person who qualifiers as prescribed under the Act. It is thereafter that an election programme is to be chalked out by the Collector of the said District in pursuance of which ultimately poll is to be taken. The announcement of the programme finds in the shape of filing the nominations while its culmination finds in the shape of voting and ultimately counting of the votes with the final result of declaration of successful candidates. All the programmes are sandwiched in these different stages. In consonance with these provision of the Collector, Osmanabad declared the election programme and the first stage pertained to the filing of the nomination papers. Those formalities are to be in consonance with the rules framed under the Act which are styled as the Maharashtra Municipalities Election Rules 1966. Rule 4 prescribes fixation of various stages of election. We will have an occasion to refer to some of these rules in proper context. Suffice it is to observe that the people were informed that the nomination papers would be accepted between 23rd of March, 1985 and 4th of April, 1985. Thus 4th of April was the last scheduled date in this stage of filing of the nominations. It so occurred, for some reasons, which however are not difficult to imagine, that right upto the 2nd of April there was no acceleration as such on the part of the prospective candidates to file nomination papers. It is on the 2nd of April, 1985 that only one person entered the arena of the contest and filed the nomination paper and who is added as respondent No. 26 in writ petition. However, there was an accelerated tempo on the 4th of April, 1985 which was the last date for filing of the nomination papers. The entire incident occurred on that fateful day. The timing available for accepting the nomination papers on that day was between 11.00 a.m. and 3.00 p.m. meaning thereby that no one was permitted to file the nomination paper after the scheduled time of 3.00 a.m. The Collector had appointed the fourth respondent herein as the Returning Officer as per the rules prescribed and the fifth respondent was appointed as the Assistant Returning Officer. Their respective duties are prescribed under the rules.

3. That some incident did occur on the 4th of April, 1985 within the compound of the Municipal Council at Murum is beyond any pale of controversy. On the contrary not only the petitioners and the contesting respondents but even the officials are unanimous on this point. The only controversy pertains to the divergence in the two versions given by the petitioners and the respondents as to how the incident occurred. Obviously one party tried to put the blame at the door of the other and there is a counter claim on the part of the other side in that behalf. We may observe at this juncture itself that we are not really much concerned with the root cause of the whole problem as the post-mortem of the incident is not the relevant requirement of this proceeding. On the contrary, the more relevant feature is that as to what is the impact of that consequence and the relief that is being claimed and, therefore, we only incidentally refer to some of the features in that field.

4. According to the petitioners, respondent No. 6 is an influential person and he is the leader of a faction which was opposed to the petitioners. According to them and which is also not seriously disputed on behalf of the respondents that the people at Murum felt that combined talents and efforts would be the better process of election while some of the people were of other view and, therefore, two organisations were formed and it is claimed that the petitioners belong to the organisation known as 'Nagar Sanghatana' while according to the petitioners the contest respondents were from another organisation which was known as 'Nagar Vikas Sanghatana.' The respondent No. 6 is claimed to be the leader of this rival organisation. For the said election 20 wards were carved out on the basis of the population and each ward was to elect one candidate meaning thereby that there would be 20 successful candidates who would be inducted in the popular body as Municipal Councillors for that Municipal Council. As stated, upto 4th of April, 1985 there was a little lethargy on the part of the candidates to file in the nomination papers. The entire rush, however, occurred on the 4th of April. According to the petitioners, they went to the Municipal Council Office at about 11.00 a.m. or little earlier than that as they desired to fill in nomination papers. They were accompanied by their proposers and well wishers. They saw the 6th respondent and his associates present in the compound. The petitioners then claimed that respondent No. 6 had a strong hold in the town and he was desirous of capturing all the seals in favour of his associates as also he was desirous of becoming himself President as formerly he was adorning that position. The petitioners then contend that the respondents headed by respondent No. 6 had a desire to see that the petitioners are prevented from filing their nomination papers and with that object confusion and rowdyism was created and a small mob ultimately developed into a large gathering amounting to about 2000 people who according to the petitioners were so rowdy that it was impossible for them even to reach the Returning Officer's table for filling the nomination forms. They also claimed that there was stone throwing from outside the compound in which some of the petitioners and many of their supporters came to be injured. According to them, the situation was so tense and severe engulfed with the potential danger to their life that they were obliged to leave the premises and rush to the nearby Police Station with a note of confidence that they would get protection from the police agency. However, there were odds against them at that time also. When they reached the Police Station and echoed their grievance and demanded protection, a reply which came as a surprise to them was given that there was inadequacy of police force available at the Police Station at that time on account of which they could not be given protection. The petitioners made specific grievance that they wanted to file nomination forms before 3.00 p.m. and that protection should be afforded within that scheduled time to achieve that scheduled object. Some of the police constables who were available along with the Sub-Inspector went to the compound of the Municipal Council and tried to passify the mob and the quarrelling people. However, according to the police assessment, the situation was going practically out of control and was likely to achieve more sinister dimensions. Consequently, additional police force was requisitioned which obviously took some time and the record indicates that this additional police force arrived at about 2.00 p.m. or so. However, according to the police assessment, the situation was so tense even thereafter that in their opinion and judgment it was hazardous for the petitioners, who by then had gone to the Police Station, to go back to the Municipal Council compound for exercising their right to file in the nomination papers. We would presently point out that the positive statement has been made by the Sub-Inspector on oath that he on the assessment of the situation, which he honestly believed so, clearly advised the petitioners not to go to the Municipal Council compound even though the scheduled time was fast approaching.

5. It is pertinent to note at this juncture that the Returning Officer was away from the office between 11.00 a.m. and 11.30 A.M. It is not understood clearly as to why he was no present at 11.00 a.m. However, according to the Assistant Returning Officer incharge during this period the stone throwing incident is alleged to have been over within the span of 25 or 30 minutes. The Returning Officer on his arrival was apprised of the situation by the Assistant Returning Officer and it is very significant to note that the Returning Officer immediately transmitted an oral message to the Collector about the potential of the situation and not only that but he also sent his written report to the Collector and this report in our opinion reflects the first reaction of the Returning Officer which go a long way in support of the petitioners case. It is also not out of place to observe at this juncture itself that even the Sub-Inspector felt the gravity of the situation so much that he sent the wireless message to the Superintendent of Police and also made a separate report and requisitioned additional police force. This was not the end of the matter, because in between even the Deputy Collector arrived though little late and he also assessed the situation. Prior to that the Tahsildar was called and he had his own assessment of the situation. The remarkable feature is which serves as an under current that all those different agencies unanimously concurred in arriving at a conclusion that the impact of the situation was so severe that it was impossible for any one to file the nomination papers and every one further opined in no unmistakable terms that it was essential to postpone the scheduled programme for filing of the nominations. We would also presently point out from some of the documents that some of the agencies made no secret that they were convinced that the petitioners were prevented on account of the circumstances from filing the nomination papers before the scheduled time. This, for obvious reasons, would have its own impact.

6. Complaints and cross-complaints then came to be lodged at the Police Station by both the sides. As stated, each side was trying to place blame at the doors of the other. Though we would presently point out that the conclusion of each side was more or less on the same pattern about the seriousness of the situation and we are much concerned with that consequence rather than the cause. Offences were registered on the basis of the complaints which are four in number. It also appears that a statement of a lady who resides nearby came to be recorded which again gave an indication about the seriousness of the incident. It is also a matter of record that the Municipal Office was also damaged and the window panes were broken. The record further reveals that about 18 persons sustained injuries of various kinds most of which were lacerated contusions. It is again a matter of record that though some were discharged on the same day from the dispensary some had to be detained in the hospital on account of the seriousness of the injuries while the one had to be detained in the Police Station itself as he was practically unconscious.

7. The rival version has a different story to tell. According to the respondents, they went to the Municipal Council Office at about 9-30 A.M. well in advance so that they would be first in the queue with an obvious desire to see that they can file their nomination papers before 3-00 p.m. The 6th respondent was first in the queue. He filed his nomination paper at 11-00 a.m. and at about 11-15 a.m. he filed his second nomination paper presumably from the other ward. The queue was quite sizable at that time. It is after 11-00 a.m. that the petitioners and their supporters entered the compound and it is alleged by the respondents that the petitioners must have realised that if they take the place in queue it would be practically impossible for them to file in nomination papers before 3-00 p.m. Having realised the situation it was hazardous for them coupled with the motive to see that the 6th respondent in his capacity did not file the nomination papers, petitioners started the mischief. The respondents had gone to the extent of saying that some of the petitioners were armed with sticks and axes. They, however, agree that there was stone throwing on large scale from outside the compound. This would have its own relevance. It is then contended that the stone throwing incident was over hardly within 25 minutes where after there was smooth flow in the queue and about 52 nomination papers were filed on that day. It is then contended that some from their side had sustained injuries and one or two out of them had also lodged complaints at the Police Station on the basis of which offences were registered. The respondents, therefore, contended in substance that the entire mischief was started by the petitioners which was out of a feeling of frustration realising that they could not file their nomination papers within the scheduled time and also with a feeling of vendetta as they desired that the respondents should not be allowed to contest the election. These, in short, are the two rival versions of the same incident.

8. The net result of this incident was, however more unfortunate than the incident itself. It is a matter of record that none from the petitioners' side could file the nomination paper while all from the respondents' side were successful in filing the nomination papers inspite of the commotion and the confusion. It is borne out by the record and which is un-controverted that 13 out of these respondents were the only persons who had filed in the nomination papers for 13 different wards which are tabulised by the Assistant Returning Officer Shri Kulkarni in his affidavit. Thus remained only 7 other wards. There were two or three candidates in each of these 7 wards and it so happened as a queue co-incidence that in all these 7 wards there remained only one candidate each as the other contesting candidates withdrew their candidature and it is also significant to note that most of the withdrawals are on the 10th of April, 1985 while couple of withdrawals are on the 12th of April. The result was that even in respect of these 7 wards there remained only one candidate each. The net result was, therefore, that in all 20 wards there remained only 20 candidates with the inescapable result and consequence that since there has been no opposition they had to be declared as successful candidates un-oppose. Significantly according to the petitioners and which is borne out by the record that all 20 candidates who come un-opposed elected by such manner again accidentally or co-incidentally happened to be belonging to the respondent's party. We would also point out that not a single independent candidate could file the nomination form on account of the gravity of the situation on 4th of April and this is practically conceded on behalf of the respondents and from this they have no escape.

9. As per the Election Rules if this is the situation where there is no contest then the Returning Officer gets a right to declare these 20 candidates as elected un-opposed even on the next day as per Rule 24 . How ever, it appears that the results were not declared by him for quite some time. The petitioners who thus were frustrated then moved this Court under Article 226 of the Constitution of India on April 10,1985. When the matter was posted on the 12th of April, 1985 a statement was made that respondent No. 6 was the only un-opposed candidate in Ward No. 1 and, therefore, having regard to the circumstances ad interim injunction was granted putting the restraint on declaration of the said ward. We are, however, constrained to make a reference to yet another disturbing feature which is reflected through the conduct of the Returning Officer. The said officer was present in Court on the 12th of April, 1985 as is accepted by him and it is apparent that he did not divulge any information even to the learned Government Pleader that in respect of all other wards there was an uncontested election. But the result was that ad interim could be granted only in respect of Ward No. 1 vis-a -vis respondent No. 6 while no injunction was granted in respect of other wards.

10. The petitioners in substance claimed that there is no election as such as it has been reduced to a farce and since they had been prevented from filing the nomination papers the entire election should be declared as void and un-sustainable. This, in substance, is the relief claimed in this petition.

11. Shri Binwade, the learned Counsel appearing on behalf of the petitioners, contended mainly that the situation the gravity of which is beyond controversy is established on record through various documents and, therefore, the petitioner's case is fully borne out. According to him, a valuable right that had accrued in their favour has been snatched away. Furthermore, the 20 elected candidates who would be practically controlling the popular body would almost be a mockery. It is further contended that the facts and circumstances would not fall within the purview of an election petition as contemplated under section 21 of the Act and secondly even assuming otherwise still in the minimum it cannot be an equal efficacious remedy. It was also submitted that the situation was extra-ordinary enough to cause public injury and that this Court would be justified in interfering even in extra-ordinary jurisdiction under Article 226 of the Constitution of India. Several other incidental questions have also been canvassed. All these are countered on behalf of the respondents by unfolding multifold contentions. In substance it is contended that the situation was the creation of the petitioners and if that be so they cannot take advantage of their own wrong and they have not even the semblance of justification to contend that the election of the elected candidates should be set aside. According to them, this was done deliberately because once the petitioners realised that standing in the queue at that place at the fag end would make them impossible to file the nomination papers and as such they were aggressors and the mischief mongers. It is also submitted that at least after 2-00 p.m. when the additional police force arrived there was no impediment for these people to go in the Municipal compound and file their nominations. Some of the learned Counsel pursued this line of reasoning and when questioned as to what was the motive for that the submission has been expressly made to the effect that the petitioners were guided by fear complex and when questioned further Shri Godhamgaonkar the learned Counsel for some of the respondents, made it explicitly clear that it was a two fold complex, the first was that the petitioners were apprehending that they may be physically assaulted by the respondents who by that time might be joined with their supporters and even might have been armed with weapons and secondly the petitioners might have apprehended that they would be prevented by the respondents from filling their nominations. These two fold reasons are however qualified by the learned Counsel when he emphasised that both these features are the outcome of the acts of the petitioners themselves and if that be so then no redress should be given to the petitioners. It was also contended by Shri Godhamgaonkar in that vein that apparently there was no basis or foundation even for creating such a feeling in the mind of the petitioners. It was also contended by the learned Counsel that it does appear from the circumstances that one additional reason might have prompted these people not to go back to the Municipal Council namely that their supporters and followers by that time had parted company and abandoned affinity towards them and might have gone to their houses and thus they were forsaken by their own force. It was also contended that the very fact that the 6th respondent went to the Municipal Council at 9-30 a.m. established his bona fide and genuine desire to be first in the queue so as to file the nomination papers within the scheduled time. One of the learned Counsel made a grievance as to why the petitioners waited till 4th of April, 1985 for filing the nomination papers, little realising a slippery ground of that argument inasmuch as the respondents were lethargic enough as they also waited upto 4th April, 1985. The fallacy is apparent. All the learned Counsel, however, were emphatic and more vigorous in canvassing yet another point which is on legal premise. According to them, when alternate remedy is prescribed in the mechanism of the electoral process under section 21 of the Act in the shape of election petition where such a relief which is sought for in this petition can be granted legitimately, then a writ under Article 226 of the Constitution is not maintainable at all. In pursuing this line of reasoning it was submitted that when the petitioners have come out with a positive case that the respondents were aggressors and they assaulted and prevented the petitioners from filing the nominations then this would amount to operating undue influence as defined the Act whereby by the act of the respondents the petitioners were prevented from exercising their electoral rights. This is one of the items which could be covered under the Election petition and if that be so then same relief can be granted therein against the respondents. It was also submitted that there is a further rigour in that mechanism inasmuch as if the respondents are found guilty they can even be disqualified for a future contest. It was also contended that non-interference would be more justified for yet another reason namely that the result have already been declared. This is the pattern on which the rival contention are unfolded.

12. As stated at the threshold, the more germane question would be as to whether the situation did occur involving seriousness and gravity and if so what is the consequence and the impact of that situation on the electoral machinery and the electoral rights of the citizen . As to who was responsible for generating the situation is not of much consequence which in our opinion is a point of secondary nature in the context of the scope of this proceeding. If that be so then we would presently point out that in an extra ordinary situation like the one at hand, in our opinion, the alternate remedy may not be available and even if assumed otherwise, it would not be equally efficacious, then in that case this Court would be fully justified in stepping in aid of the citizens at large when public injury is being caused. We would justify our observations on the touch stone on some of the decided cases as this is the main pivot of controversy in that behalf.

13. We have already indicated with the necessary details the structure of the factual aspect and the repetition is un-necessary. In that context to complete the circuit reference to some of the documents and reference to some of the affidavits has become inescapable. The documents obviously cannot be said to be manipulated because all of them are of the same date. There was hardly any time for any of the party to collect any legal advice to adopt the future strategy and we would presently point out that truth has been spelt out by some of the documents either inadvertently and the most important and vital document in our opinion is the report made by the Returning Officer immediately after the incident even before 3-00 p.m. It has become necessary to reproduce the same report made to the Collector, Osmanabad, in extenso as every would in that report carries some significance. Free translation, thereof, is being reproduced as---

'On the occasion of filling nomination papers there occurred riot and stone throwing in the town. On that count there is still tension in the town. Therefore, the Executive Magistrate, Omerga has issued proclamation under section 144. Under these circumstances, if the election programme is further carried out it would create further at that place and consequently there is a possibility of damage to property and even loss of human life. On 4-4-1985 upto 3-00 p.m. nomination papers of only one party have been filed, as disclosed through the local inquiry. The aforesaid incident occurred when the members of the other party tried to fill in their nomination papers. Consequently the other party could not get any chance and opportunity whatsoever to file their nomination forms. Under these circumstances it is necessary and proper to postpone the election programme at least for some time.'

14. These recitals quoted above in verbatim require really no comments. However, to emphasis the implications even at the implications even at the cost of repetition it becomes manifest that the assessment of the Returning Officer at that moment was to the effect that the situation was extremely provocating and so much explosive that even a small spark could ignite the same. He has used word that even the atmosphere in the town was explosive and there was likelihood of damage to the property and even loss of human life. What is of utmost importance is that the Returning Officer made it clear that upto 3-00 p.m. the nomination papers of only one party came to be filed and he further clarifies that the members of the other party though attempted to file the nomination papers were prevented and did not get an opportunity at all to file the nomination papers. This is the assessment of the situation at the spot. Three things harmoniously emerge one is that he accepted the existence of two parties or two factions and it is, therefore, futile for the 6th respondent to contend that he had not formed any organisation as such. Secondly he accepts that all the nominations of one party came to be filed and the third which is more important is that according to the assessment all the members of the other party were prevented from filing nomination papers. All these three things co-exist. He has also assessed the situation that there was danger to property or even to human safety.

15. On the same application there is an endorsement by the Resident Deputy Collector who had arrived on the same day and which reads as---

'I have personally visited the spot along with the Superintendent of Police and I agree with the report of Returning Officer, Murum.'

It is then borne out by this report that the Returning Officer had recommended that under these circumstances it was absolutely essential to postpone the scheduled programme of even filling of the nomination papers and the entire crux of the matter lies in this recommendation. The Resident Deputy Collector in his endorsement further observed as--

'As per the recommendation (of the Returning Officer), the Secretary Urban Development be requested to postpone the election till the condition returns normal.'

This again is an assessment of a responsible officer of the rank of Deputy Collector who was obviously not interested in either of the parties. Thus the formidable item which emerges from the documents is that both these officers recommended that the election programme should be postponed which obviously recommended even at the stage of filing of the nomination papers. There is also yet another report of the Returning Officer which is more or less on the same lines. That report indicates that these petitioners arrived at about 11-00 a.m. while some of the respondent were already present. Then a quarrel ensued between them and stone throwing started from outside the compound causing damage to the office. There was a mob of about 200 people and there was mutual fight between the parties which continued till about 25 minutes. He mentioned that the Tahsildar, Executive Magistrate arrived at 1-15 p.m. and he endeavoured to restore peace. It is an accepted position as reflected in this document that proclamation under section 144 of the Criminal Procedure Code was made at about 4.00 p.m. on the same day. This was the immediate report of the Returning Officer. There is apparent consistency between the said two reports though some details are given in one. Thus it is apparent that the situation was so tense that it required the attendance of all the officers and proclamation under section 144 of the Criminal Procedure Code.

16. In the other category we have the application of the petitioners and the respondents. The petitioner No. 10 raised to the Police Station and lodged this applicant at 1-10 p.m. and it has become necessary to reproduce the same with free translation as---

'When myself and other candidates of our panel had gone to the Municipal Office to file the nomination forms, the members of the opposite party of Shri Madhavrao Patil prevented us from filling the papers and assaulted us and thereby did not allow us to fill in the forms and they took change of the office and they did not allow us to fill in the forms.'

17. This makes it clear that there two panels one of the respondent and the other of the petitioners and while the petitioners' panel headed by respondent No. 6 prevented them and assaulted them. This application was made by the petitioner No. 10. At 1-25 p.m. Petitioner No. 10 gave another application more or less on the same lines but adding a further relief demanding police protection. In substance he stated that it is obviously necessary to give protection to him and the candidates of his panel 'for the purpose of filing the nomination papers'. He further clarified that this is necessary as at 11-00 a.m. When they had gone to file the nomination forms they were assaulted and they were prevented by the respondent from filing the nomination papers.

18. Then we have on record a regular complaint by the very petitioner No. 10, on the same afternoon at 1-00 p.m. In the said complaint some details are given so as to formulates certain offences and that he has also gives names of certain respondents. It is important to note that there is a reference in this complaint also that right from 11-30 p.m. some of the petitioners had to be detained in the Police Station as they were not afforded any police protection and thus they had to remain at the Police Station on instruction of the police even upto 3-00 p.m. On that basis offence was registered at the said Police Station. This would assume importance on one point that thought they were telling that they wanted to fill up the nomination forms they had to be detained in the Police Station for their safety and it would be risky even to take them to the Municipal Council to fill in the nomination forms because the situation was tense. It is fully corroborated by the positive affidavit made by the Sub-Inspector attached to that Police Station.

19. We have also on record the complaint filed by respondent No. 7 and he has incorporated therein the necessary details as indicated herein above the version of the cause contending that the petitioners were aggressors and they assaulted the respondents. It is mentioned therein that they assaulted them with sticks and axes. On that basis certain offences were registered. There is also a statement of the one Smt. Parvatibai recorded by the police in that inquiry to which only an incidental reference can be made as it can not be relied upon substantially. However, it indicates that some of the victims of the assault entered her house for shelter and those included the relations of the petitioners and some of the respondents and other persons entered her house in order to drag out the victims. There is also an application by one Sharanappa which also indicates more or less on the same lines that some of the respondents broke open his house in order to find out the persons who had concealed there.

20. In the other category we have the very significantly affidavit filed by the police Sub-Inspector Shri Gite attached to Murum Police Station. Some of the recitals in the affidavits are self explanatory and can be reproduced with convenience as---

'............I had also been to the office of the Municipal Council, Murum on the same day (4th of April, 1985). Round about 200 people were gathered around the Municipal Office. ............I say that there was some quarrel between the two groups, one headed by Sidramappa Mudkanna (petitioner No. 10) and another headed by Madhavrao Patil (respondent No. 6). I tried to specify them but as both the groups were annoyed the quarrel between went on. Immediately from outside stone pelting was stated. Stones were pelted on the office of the Municipal Council. This went on 25 minutes.'

As regards the police force and the other developments, the affidavit further reads as---

'I say that there are only 14 constables who were present on that day on duty. Out of them one was Police Station Officer. I kept two constables in Police Station and rest of the constable were deputed to the office of the Municipal Council to disperse the mob. Later on round about 2,000 people gathered around the Municipal Office. I and the police constable were trying to disperse the mob. I went to Police Station to give message on wireless to the Superintendents of Police, Osmanabad to send police force. I gave wireless to the Superintendent of Police at Osmanabad. Again I went to the office of the Municipal Council. I tried to pacify the mob standing there.'

The affidavit further avers as---

'I again went to the Police Station at about 1-00 p.m. On 4th of April, 1985. I say that Vasant Wadikar, Sadrappa, Gulab Mudkanna, Sambhaji Khandagale and one more person (all of whom belonged to the petitioners group) were present in the Police Station. They were asking me for police protection. As there was no sufficient police force at that time. I asked the said persons to be in the Police Station so that nothing would happen against them and they would be under police protection.'

The further recitals are more relevant namely---

'They were asking police protection so that they would be in a position to fill up nomination forms. As the mob gathered around the Municipal Corporation Council was big, it would have been very difficult to give police protection. They were asked to be in the Police Station. They remained in the Police Station upto 3-00 p.m. on April 1984.'

The Police Officer then stated that at about 2-00 p.m. additional police force of about 14 in number arrived from different places in that vicinity which was obviously in pursuance of the wireless message. The Police Officer then makes the situation further clear that reiterates his earlier statements as---

'I say that the persons who were sitting in the Police Station for protection were telling that they wanted to fill up the nomination forms. I thoughts that as the situation was tense it would not be good to ask to go fill up the nomination form or to take them to the Municipal Council office. I say that an application was submitted to the Police Station on 4th April, 1985 at 1-20 p.m. requesting to give protection.'

He produced the copy of the said application. According to him, he then requested the Tahsildar and the Taluka Executive Magistrate who was present at the time in Murum to issue proclamation under section 144 of the Criminal Procedure Code and accordingly he issued the order at 4-00 p.m. on the same day. The police patrolling was kept at Murum throughout the night and on the 5th and 6th of April, 1985. He then states that at 2-15 p.m. respondent No. 7 filed the complaint on the basis of which offence was registered while at about 4-00 p.m. petitioner No. 10 gave the compliant for which different offence was registered. According to him, two more complaints were received at the Police Station in respect of which also offence were registered. The investigation is in progress. He then adds as---

'I say that 18 persons from both the parties were injured. They were sent to the Medical Officer, Murum.'

He has filled the copies of the medical certificates.

21. This affidavit in the context of the various documents such as application and the complaints vividly the heavy dimension of the incident and its impact. Nearly a mob of 2000 people had collected. Many of those people were in agitation mood while stone throwing had already occurred from outside the compound. The criticism that the police could not control the mob at the initial stage carries no conviction. Previously there was utter inadequacy of police force. It was, however, seriously contended on behalf of the respondents that at last after 2-00 p.m. when additional force arrived there was no difficulty to control the mob. The situation was delicate do not only tense but it had a potential of being further exploded if there was slight provocation. The police had to exercise some reasonable discretion and could not have acted hastily or in a rash manner. They did try to pacify which obviously must have consumed some time. The Executive Magistrate was also engaged in pacifying the mob. The potential of the situation continued and it is because of that only that the proclamation under section 144 of the Code of Criminal Procedure had to be issued and it is stated they could the situation to some extent at least upto 4 o'clock in the evening. We thus do not find any reason to discard this assertion of Sub-Inspector when it is supported be documents and circumstantial evidence. It is thus well established from this affidavit that at least 3 to 4 petitioners had been to the Police Station much before 3 O'clock asking for police protection and making it clear that they should be taken to the Municipal Council office before 3-00 p.m. to file the nomination papers. The Police Sub-Inspector was the better person on the spot to asses the situation and it is his wisdom having regard to various aspects to that situation that he felt it was absolutely under for these people to go back to the Police Station or even being taken to the Municipal Council office even for the purpose of filling of nomination forms as it reasonably and rationally felt that since it was the cause of the trouble the repetition could be eminent if these people gone to file the nomination papers. The report of the Returning Officer also makes it clear that there was eminent danger to the property and human life in the town. All these events occurred from 11-00 a.m. onwards and though quite swiftly must have consumed time. Obviously, therefore, by the time there was at last apparent normalcy the scheduled time for filling the nomination was already over. The petitioners moved the police that they should take them back to the Municipal Council Office for the filling nomination forms. The police not only refused but detained them in their own interest for protection in the Police Station right upto 4-00 p.m. The record reveals that the Tahsildar also arrived before 3-00 p.m. and he was informed of the situation and the petitioners made a grievance to him also about they being prevented from filing the nomination forms. He also could not do anything perhaps in the larger interest as he concurred with the opinion of the Police Officer. The endorsement of the Resident Deputy Collector also speaks volumes about the heavy dimensions of the situation.

22. It is un-necessary to go through the medical certificates though the copies of 18 certificates are filed by the police. It is an accepted position that from the respondent's side only two of the respondent namely Nos. 7 and 13 had sustained injuries and in additional two persons who are the proposers of respondents Nos. 8 and 24 were also injured. On the petitioners side in all 8 persons had sustained injuries. There were four outsiders who have also sustained injuries. Injuries suffered by some of the victims are quite serious. Thus for instance one Shivraj had sustained 14 injuries. Similarly one Shambhaji had sustained 9 injuries. Many of the victims have sustained more than one injury. Though some of the persons were discharged to the same day some had to be detained in the hospital. The statements of Smt. Parvatibai and Sharanappa as discussed earlier also indicate that the members of one fiction have committed house breaking to drag out the victims who had concealed themselves for protection.

23. The affidavit of the Assistant Returning Officer respondent Nos. 5. shows that at 11-30 a.m. two forms of respondents No. 6 were received. According to him, some of the petitioners arrived at about 11-15 a.m. There was quarrel ensued between the two factions. The affidavit then asserts as---

'People standing the compound of the office of the Municipal Council started pelting stones on the building of the Municipal Council. Some stones came to my office. As I was sitting in my chair in the office it was difficult for me to identify who pelted stones. As the stones were pelted for 25 minutes I stopped the work of filling nomination forms. I say that at about 11-30 a.m. on the 4th April, 1985 Shri S.T. Bhagat, Returning Officer came in the office of the Municipal Council, Murum. Situation returned to normal within the parties of the office.'

He no doubt then as that the Returning Officer started receiving nomination forms. However, he adds as---

'There was commotion outside the premises of the Municipal Council upto 1-30 p.m.'

He also refers to the report submitted by the Returning Officer to the Collector.

24. The Returning Officer, the fourth respondent herein says in his affidavit in so far as is relevant as---

'.........The incident was reported to me by Shri Kulkarni............. I made the report to the Collector Osmanabad by wireless at 1-15 p.m. Before that I tried to contact the District Magistrate on phone. I could not contact him on phone. I, therefore, gave wireless message to him.'

He then no doubts says that thereafter he received as many as 52 nomination forms upto 3-00 p.m. He accepts that at 5-15 p.m. he received the application from the petitioners for postponing the scheduled programme even on submissions of nomination forms though according to him he held no jurisdiction. He then says---

'I, therefore, submitted my detailed report to the Collector, Osmanabad.'

He makes a reference to both these reports. According to him, commotion continued even upto 1-30 p.m. even when the work of accepting the nominations forms was being carried out.

25. This would thus be manifest that the situation was extremely explosive and the police also did not want any one to take any chances. In their opinion, they did not allow the petitioners to go back to the Municipal Council. The normalcy could not be resorted for quite some time upto 4-00 p.m. The presence of the additional force could not spring about the expected result immediately. All along the petitioners were almost pestering and requesting all officers including the Police Officer and the Executive Magistrate to take them to the Municipal Council to file nomination papers and every one appears to have advised them not to do so. Not only that but for their own safety they had to be detained in the Police Station under protective custody even upto beyond 3-00. pm. The report of the Returning Officer and other officers make it clear that the petitioners were prevented from the filing the nomination papers and , thereafter, they were also not allowed to go on account of the prevailing situation. It is further clear that practically every authority frantically informed the Collector with the same request to postpone even the stage of filing the nomination forms and the Returning Officer makes no secret indicating that the situation had handicapped the petitioners because people from their panel were prevented from filing the nomination papers while people from the respondent's panel could file all the nominations. Filling of 52 forms on that day is apparently deceptive because some had filed two forms and bulk of those consisted only of the respondent while the marginally few conveniently withdrew the contest and who thus could be the dummies. It is in context, therefore, worth nothing that the Collector, Osmanabad on the receipt of these reports submitted his own report to the Secretary to the Government, Urban Development Department, Government of Maharashtra on 5th of April, 1985 a copy of which is placed on record on behalf of the State. In the first para he refers to the contests of the report of the Returning Officer as communicated to him about the quarrel, the tension prevailing and even danger to the property. In the second paragraph he refers to the fact that the Tahsildar and the Executive Magistrate, Omerga had rushed to the spot and had to proclaim order under section 144 of the Criminal Procedure Code. He then makes in further clear that even the Superintendent of Police and the Additional District Magistrate, Osmanabad reached at Murum and handled the situation. He, then refers to the registration of certain offences. He then mentioned that 12 injured were admitted in the hospital while 6 were discharged. According to him, the District Magistrate, Osmanabad, has promulgated section 37(1) and (3) of the Bombay Police Act from 5-4-1985 to 11-5-1985 in respect of the Municipal Jurisdiction of Murum Municipal Council. In the third paragraph he mentions as---

'The Returning Officer has reported that by this illegal act, the other party has been deprived of filling the Nomination papers. He further contended that the situation is tense, hence requested to postpone the election of the Municipal Council for some period.'

In para 4 he refers to the report of the Tahsildar and Executive Magistrate which is no the same line and reads as---

'The Tahsildar & Executive Magistrate, Osmanabad Omerga on 5-4-1985 has reported that due to the inadequate police force at Police Station, Murum the persons of the group of Shri Mudhanna could not go in the Municipal Council for filing the Nomination papers. He further reported that taking into consideration the tense situation at Murum, the elections of this Council may be postponed.'

26. In the last paragraph the Collector makes a recommendation as---

'It is, therefore, proposed that the election to the Municipal Council, Murum, Taluka Omerga, district Osmanabad may be postponed for a specific period. Government order in this regard may kindly be communicated to this office early.'

A copy of this report was submitted to the Commissioner, Aurangabad Division. This report is self explanatory requiring no comments. It is thus apparent that the Collector on collecting all the informations from various agencies and after having himself being satisfied made a propose to postpone the election. The further underlined acceptance of the fact indicates that the agency was convinced that the people from the petitioners party were prevented from the filing the nominations forms. Thus every one accepted the nature of the incident, its consequences and the necessity to postpone the election. However, inspite of this report we are more surprised to note that the Government did not accede to the request and asked the Returning Officer to go ahead with the programme. In the face of these glaring features and the reports from the subordinates who had no interest in sidings any party and in the face of the utter justified necessarily to postpone the election, the Government for some reasons which are not clarified took the most irrational stance and declined to postponed the election. The wisdom of that order is difficult to be tagged with any rationale. This stance obviously springs an element of surprise as also obvious dis-satisfaction for any one.

27. The 6th respondent no doubt has filed a detailed affidavit and so did responded No. 8. Both are more or less on the same lines. They have their version of the incident which is already indicated. According to them, the 6th respondent and his associates had gone to the office at 9-30 a.m so that they could be first in the queue and in the position to file the nomination papers before 3.00 p.m. At 11-00 a.m the petitioners and their supporters came and demanded that a different queue be allowed to be formed for their candidates which was declined and, thereafter they started creating rowdyism. It is that stone started being pelted form outside. According to them, this mischief even form outside was done by the supporters of the petitioners. Respondent No. 6 then makes an interesting statement as---

'.........There was some verbal exchange of words between my proposers, myself on one hand and their followers on the other hand. When this was going on persons outside the compound started pelting stones and some of these stones not only hit the persons in the queue but also entered in the office of the respondent No. 4 and damaged the glass panes and articles of the office. Immediately the Police Sub-Inspector rushed there with constables and they were trying to stop the stone throwing but there was continuous stone throwing from out side the compound............. The stone throwing was so heavy that most of the proposers and candidates started running away to save themselves. But my supporters and I myself with great difficulties stopped my proposers and candidates from going out of the compound of the respondent No. 4 or leaving their spaces in the queue. In fact due to this stone throwing the persons in the compound were frightened. I say that the entire stone throwing was from the out side compound.'

According to him, all the stone throwing was from outside and if that be so then it is apparent that at least those petitioners and their associates who were inside the compound had admittedly not indulged in stone throwing and this is apparent even from this affidavit. A grievance is then made that it was not difficult for the police to bring the situation under control. Arrival of the Executive Magistrate is accepted. A grievance was made that the petitioners have improved their case in the even in that for the first time they alleged that the nomination forms were snatched from their hands. It is un-necessary to go into the other details of this affidavit as the version of their sides already discussed. In fact is was suggested that the petitioners insisted on forming a separate queue so that their nomination forms could be filled within 3-00 p.m. The dimension of the situation is accepted even by the respondent as according to him the stone throwing was so heavy that the people started running halter skelter. He has made a tall claim when he says that though every one was afraid of his life in the compound and was trying to run away, he could persuade himself and his other candidates and proposers to continue to stand in the queue and they courageously did so. Significantly only four persons from their side received the stone injuries which were comparatively minor while more persons from the petitioners' side sustained injuries. It is very difficult to accept that under that situation these people could really muster courage to continue to be in the queue specially when they allege in one of the complaints that some of the petitioners were armed with sticks and axes which infact is not supported by any material nor it is seriously relied upon during the course of arguments. It is suggested on behalf of the petitioners that it may be the respondents might have been accommodated by the concerned officers by merely collecting their forms in bulk instead of make them continue to stand in queue in that disturbed situation. It is no doubt suggested that the people standing outside were the followers of the petitioners and they might have been instigated by the petitioners to indulge in stone throwing. Those people perhaps missed the aim and injured more persons from their own side while the people from the respondents' side merrily continued to be in the compound or near the office. All this smacks of artificiality.

28. It was then suggested by the learned Counsel that the petitioners themselves did not go back to the Municipal Council office because they had the fear complex. We have already discussed the contention of the learned Counsel for the respondents in that behalf. It was suggested that perhaps they had the guilty conscious or that they had the fear complex that the respondents may retaliate by assaulting them or that they felt that they further would be prevented by the respondents from filing the nomination papers though according to the learned Counsel this was an imaginary complex and if it was real then it was the product of their own wrongful act. It was also suggested that may be their supporters or the candidates had fled away and thus abandoned their company and, therefore, they did not file the nomination papers. It was then suggested that it was not as if that they could not file the nomination papers but that they did not want to file the papers. The quibbling of words and dubious distortion of facts would not go to the rescue of the respondents in that behalf. It is very difficult to accept that when the petitioners were in mood to contest the elections and when they had real anxiety to fill the nomination forms they would not have hesitated to go back to the Municipal Council office but for some substantial reason more so because by leaving the respondents in the office and thereby allowing them to file the nomination papers they were taking the calculated risk of the respondents' candidature being elected almost un-opposed and consequently they were deprived of the right even to contest the election. It is impossible to endorse the said contention on behalf of the respondents. The only irresistible inference would be that there was some formidable reason on account of which they could not go back and on account of which they could not file the nomination papers and that presumption is boldly reflected in the circumstances, various affidavits and various documents which are in favour of the petitioners and against the respondents. This would also dispose of the contention of the respondents that the petitioners cannot take advantage of their own wrong and if they could not file the nomination forms they had to thank themselves. For the reasons already assigned this submission has also no substance. It was faintly suggested that at least respondent No. 26 has file the nomination form on the 2nd of April, 1985 and his case will have to be separated from the other respondents. However, it cannot be over-looked that he also belongs to the respondents' group and a peculiar situation has been created the motive of which becomes apparent on the surface. As stated, 13 candidates had to be declared un-opposed because they were the only candidates who had filed the nominations on the 4th of April, 1985. In respect of 7, though there was one or two more in addition to the candidates from the respondents' side in other 7 wards, still surprisingly all those remaining candidates from those 7 wards conveniently withdrew their candidature mostly on the 10th and few on the 12th of April, 1985 and thereby even those 7 candidates in those 7 wards were left all alone in the field. That is how they came on par with these 13 candidates, who had filled in the nominations on the 4th. There is much substance in the contention of Shri Binwade, the learned Counsel for the petitioners, that this is again a strategy that other candidates are either dummies or had to withdraw from the contest on account of the influence of the respondents and thus the way for the 7 candidates from the respondents' panel was made clear. We thus find no substance in that behalf also as raised by the respondents.

29. It is clear form the record that even on the 6th of April on wards various applications and representations were made by the petitioners to various authorities as the 5th of April was the holiday. However, though all the agencies desired to uphold the validity of their representations, the Government somehow or other was firm in refusing the same. We have already commented on that aspect. It was no doubt suggested by Shri Binwade, the learned Counsel for the petitioners, that respondent No. 6 is the leader belonging to the ruling political party in that town, whereas most of the petitioners belong to other side. However, there is no material in that behalf placed before us and, therefore, it would not be proper to have an exercise in speculation and it is also not permissible to find out the reason as to why the Government has taken such an irrational stance. Incidentally we may observe that it is contended by Shri Binwade, the learned Counsel for the petitioners, that respondent No. 6 was President of the Municipal Council in the past and very much desirous of adorning that office once again and that is why he was anxious to see that he and his partymen are elected un-opposed. The affidavit of the respondent No. 6 though denies this contention however interestingly reflects the modesty on the part of the respondent No. 6 as according to him he is not the leader of the party but he is popular with the people and secondly though he has no ambition as such to become the President, he may not decline that offer if the party gives that mandate to him. This modesty is more deceptive and blurts out some truth giving justification to some extent at least for the contention canvassed by the learned Counsel for the petitioners.

30. There is yet another interesting shade to this aspect. The learned Government Pleader Shri Choudhari submitted that in the first instance the situation was not so grave which demanded postponing of election and secondly even assuming otherwise according to him the Collector had no power. In respect of the first contention we are again met with an element of surprise as to how such a stance can be adopted on behalf of the Government when they are confronted with the affidavits of their own officers and the report of the Collector himself along with the various documents which are already discussed. All that plank of evidence completely destroys even a remote scope for advancing such an argument on behalf of the Government. This submission, therefore, is really an apology for the main issue and we have not the slightest reservation to outright reject the same though we feel under the circumstances it was really not permissible on behalf of the Government to take such a stance.

31. In respect of the second contention about the powers of the Collector the learned Government Pleader relied on the provisions of section 4 of the Election Rules and especially on sub-clause (3) and advanced an argument that change of date or the re-appointing date or reappointing schedule can be done by the Collector only if an appeal under Rule 15 has been presented and decided and not otherwise. Rule 15 pertains to an appeal to the District Judge from any decision of a Returning Officer accepting or rejecting the nomination papers and sub-clause (2) makes it clear about the capacity of a person who is eligible to file such an appeal he being required to be a candidate aggrieved by the decision of the Returning Officer. It is apparent that Rule 15 has absolutely no nexus as sought to be made out by the learned Government Pleader as in the first instance there was no acceptance or rejection of any nomination paper. Assuming however that is pertains to the acceptance of the nomination papers of the respondents it by itself could not have been appealed against because the acceptance of the nomination papers by itself de hors of the other circumstances could not be the subject matter of the appeal as the petitioner's main grievance did not pertain to the acceptance of the respondents' papers, but more about they being not able even to file the papers, more so, as in the instant case it is not as if that the nominations of the petitioners were rejected. However, as stated, the petitioners who were not the candidates or who were not allowed to be the candidates could not get such a right. The scheme of Rule 4 further destroys the contention raised by the learned Government Pleader, as all through out even in earlier sub-clause than sub-clause (3) there is the user of the term 'appointing or reappointing dates for all the stages of election'. This would be a pointer that the Collector has full power to reappoint the dates of all the stage of election afresh and it does not depend on the contingency of filling the appeal. There is thus no substance in that contention also.

32. It is no doubt true that under section 4-A power vests in the Collector to postpone the election programme of all stages during the period of National or State mourning. Similarly under Rule 13 sub-clause (5) it is obligatory for the Returning Officer to have a scrutiny of the nomination papers without adjourning the same on the scheduled date with the proviso that the adjournment can be granted only if such proceedings are interrupted or obstructed by violence or riot or by cause beyond his control. Rule 46 pertains to the postponement at the stage when the poll is in progress, on account of any sufficient cause including riot or violence. It is no doubt unfortunate that no specific provision has been made on this pattern for postponing the filing of the nominations. However, in our opinion, it is implicit in the mechanism of these rules and the scheme there under. As state, Rule 4 which is a generalised rule relating to all stages of the election vests power in the Collector to postpone such election and reappoint the dates afresh and which includes the date for filling of the nomination also. This power though now sought to be disputed on behalf of the Government is however, accepted by the Collector himself in his report though according to him he had made a proposal to the Government in that behalf and thus on the proposal being accepted the Collector would have been clothed with authority and jurisdiction to reappoint the said dates. Even respondent No. 6 in his affidavit admits as---

'I say that though there are powers with respondent No. 2 Collector to reappoint the date as the last date, time and place for making nominations but it is only on the subjective satisfaction of the authority that such action could be taken.'

The power vesting in the Collector does exist and the subjective satisfaction to reappoint the dates of election programme is boldly reflected in his own report. Both the things, therefore, co-exist.

33. This would completed the chapter of the factual aspect leaving no manner of doubt that under the circumstances as catalogued herein above it was more than the justified necessity to postpone the elections even from the stage of filling of the nominations as the petitioners were obviously prevented from filing their own nominations. The stage is, therefore, now ripe to consider the legal premise on which the maintainability of the petitioners' petition under Article 226 of the Constitution of India is challenged on behalf of the respondents. In effect, the contention is that the Act has a self contained machinery for any one to get redress in such circumstances and the machinery being self sufficient and a prescribed one under the Act the aggrieved person must resort to the remedy through that machinery only. In other words it is strenuously contended on behalf of the respondents that alternate efficacious remedy is available to the petitioners in the shape of filing the election petition before the District Judge and it is further contended that the factual aspect in the instance case and the relief claimed can squarely be covered under that category and as such this Court would have no jurisdiction to entertain much less to grant any relief in writ petition. Section 21 of the Act refers to that so-called machinery and alternate remedy and which no doubt ostensibly indicates that the relief cannot be sought for and obtained except by filing of an election petition before the District Judge. Questioning the election of any Councillor within 10 days from the date of publication and the names of the Councillors in the Official Gazette under sections 19 and 20, not only the candidate himself but any person entitled to vote at the election has a right to file such petition. It thus prescribes the form and requirement of such petition as also the nature of reliefs that can be claimed thereunder. One such relief is for declaration that the election of all or any of the returned candidates is void while the other in addition for declaration that the candidate who has moved the petition should be declared to be duly elected. Heavy reliance is placed on the other aspect as election can be questioned even on the allegation of operating of corrupt practice by the candidate or his agent. etc. at the said election. Corrupt practices in that behalf are illustrated in section 22. Reliance in that field is placed on sub-clause (2) suggesting that on the showing of the petitioners themselves the respondents exercised undue influence on them. No doubt, Shri Binwade, the learned Counsel for the petitioners, tried to submit that the concept of undue influence as normally understood will not cover the fasts at hand and the illustrations given in sub-clause (2) again is a pointer as to what is meant by undue influence. Shri Bajpai, the learned Counsel for some of the respondents, however, contended that the illustrations in the proviso are obviously without prejudice to the generality of the provisions of the main clause and, therefore, that generality is not affected. According to the learned Counsel the ambit of that generality is not a matter of any inference but it is amply clarified when it is explained as to what is meant by undue influence. The terminology does suggest that the undue influence in this context would mean any direct or indirect interference on the part of the candidate or his agent or any other person with the consent of the candidate or his election agent with the free exercise of any electoral right. Shri Bajpai, therefore, contends that as per the recitals in the petition itself the alleged acts of the respondents did amount to direct interference with the free exercise of any electoral right of the petitioners which would obviously include not only the right to vote but even the right to contest and for which purpose it would include the right to file the nomination paper. On the plain reading of this provision the concept of undue influence with such a clarification is made apparent and thus there is much force in the contention raised by Shri Bajpai about the construction of this provision. As according to him it would make the provision nugatory if the physical assault resulting into interference with the free exercise of any electoral right is excluded from this ambit. It is true that it is stipulated that what should be affected is not only the exercise of such right but the free exercise thereof. This apparently may not make any difference in the matter of construction of this provision. We would, therefore, proceed on the footing on the construction thereof as suggested by Shri Bajpai, the learned Counsel for the respondents. It is, however, contended on this basis that the allegations in the petition should be considered for this purpose and when done so it would be clear that the petition itself tends to make out a case that the respondents by their action directly or at least indirectly interfered with the free exercise of the petitioners' right to contest the election which would amount to a corrupt practice and thus can be legitimately the subject matter of an election petition under section 21. It is also submitted that the rigour of that provision indicates that if corrupt practice is established against the respondents, then in addition the District Judge can disqualify the concerned respondent for a particular period. It is on the basis of the reading of sections 21 and 22 of the Act together that the learned Counsel for the respondents submitted that in the face of these provisions there is a legislative mandate that it is this remedy and this remedy alone which should be resorted to for getting the relief. Shri Binwade, the learned Counsel for the petitioners counters this contention on some grounds as according to him this is not a remedy available to the petitioners at all and even assuming otherwise it is not an equally efficacious remedy. Further some of the rights which would have accused to the petitioners are not available to them while some claim which they could have made in the election petition cannot be advanced for obvious reasons. It is further submitted that this was an extra-ordinary situation in which event there is no outright bar for exercise of jurisdiction by this Court under Article 226 of the Constitution and this, according to the learned Counsel, is pre-eminently a fit case answering that description.

34. Before entering the area of this controversy one aspect deserve to be restated as it is relevant for the purpose of resolving this controversy. We have already stated at the threshold and we are reiterating that having regard to the scope of this proceeding we are not called upon to decide as to who was responsible for the said incident or as to whether the blame can be apportioned and it fact we are not recording any finding whatsoever in that field. Reference to various aspect touching the facts made earlier are not decided in the exercise of fixing the blame but it was essentially to indicate the dimension of the situation and more pertinent about the impact of that situation. It is this premise in our opinion which extremely relevant in the wake of the controversy generated by the parties on this legal premise. We thus proceed only on the footing that the situation did arise which was of heavy dimension on account of which it was impossible for the petitioners to submit their nomination forms. This is the inescapable of the entire record place before us and the discussion made herein above. It is this impact which has a direct bearing on the controversy raised by the parties. It is true that the petitioners tried to make out a case in the petition that the respondents committed the whole mischief and the stones were pelted by their associates, while respondents tried to make out a case through the affidavit and documents that the petitions did the same directly or through their associates and followers. Thus there is controversy between the two version and we are not inclined to resolve that controversy in this proceeding. However, it is apparent that if the source is taken out then both parties impliedly accept the nature further of the situation as the outcome of the incident and the circumstances further establish, inspite of denial by the respondents that the petitioners on account of the force of the situation could not submit their nominations. It is, therefore, the situation and the force thereof resulting into denying an opportunity and facility for the petitioners to file the nominations that is dominant any other aspect and we are concentrating more on this aspect only.

35. In that behalf it is now well establish that only the 20 respondents filed their nominations and were declared elected un-opposed while none of the petitioners could even file the nominations. Further not a single independent candidate had also filed the nominations. In that behalf the affidavit of respondents No. 6 makes the following statements---

'I further say that in most of the wards independent candidates could not file their nominations because of the incident of stone throwing resorted by the petitioners with that object and as said earlier those independents candidates had already left said when the stone throwing was going on giving up the idea of filling of nominations.'

Respondent No. 8 goes a step further when he stated in his affidavit as---

'I further say that due to the earlier stone throwing incident the intended independent candidates have given up the idea of filing the nominations.'

These two statement would make it clear that some independent candidates not only desired to contest but had attended the Municipal Council to file the nominations on that day but they had to leave the place on account of the stone throwing. They were not assaulted nor either of the parties has tried to condemn them. They were thus helpless person and they had to abandon the idea only obviously because the situation was so tense indicating further that they could not take the risk of continuing in the premises to the file the nominations. Thus the valuable right of these independent candidates has also been wiped out on account of the thrust of the situation and which even according to the respondents could not have been created by these independents persons. This circumstance is a very relevant and material one. We may incidentally observe that respondent No. 6 in his affidavit also stated as---

'I say that the moment news spread in the town, of this disturbance it was only a gathering of on lookers which was there collected round about the compound and they were neither supporters the petitioners nor of respondent No. 6........ and this mob was mostly of all these persons who had anxiously gathered there to see as to the happening there and the police constable and officers were continuously engaged in controlling this mob.'

No doubt this was in the context of the suggestion that the mob that held collected after the stone throwing incident outside the compound was this mob of innocent onlookers and this not have created impediment for the petitioners file to the nominations. The police record indicates that even then mob was uncontrollable which could not be if it was a situation as stated by the respondents. However, assuming otherwise and accepting this statement, it followers that this mob did not include, at least according to the respondents, and one belonging to the petitioners' party and even such a mob could not be controlled by the police. It is further record that thought the actual stone throwing had stopped, the tension was prevailing and the people were running helter-skelter and the commotion was created by the mob outside the compound even upto 1-30 p.m. as per the respondent themselves. This would again be a pointer to suggest that whosoever may be responsible the fact remains that the situation was extremely tense when earlier there was stone throwing and danger to the file and property was eminent and a mob of about 2000 persons had continued to be outside the compound and there was commotion and confusion and the situation was un-controllable for the police even upto 3-00 p.m. This would thus reinforce our conclusion and approach that it this situation which resulted into the consequence as suggested by the petitioners and which could be even without it has been developed on account of the petitioners or the respondents. As stated, even the prospective independent candidates who had attended for the specific purpose of filing the nominations had to run away from the spot. It was contended that these independents persons have not made any grievance. This really begs the issue and does not answer it.

36. Out of the analysis of this situation would spring some aspects which are formidable by themselves and which in our opinion are really beyond any pale of controversy and which could appear even after considering the contentions raised on behalf of the respondents.

37. The first is that the very concept of election in a democratic set up not only but is completely crushed. Fair play is the foundation and free exercise of electoral right is the pivot. The petitioners as long as some of the independent persons could not even file the nomination papers because of that peculiar situation which remains in fact notwithstanding the question as to who was responsible for the same.

38. For 13 wards there remained only 13 nominations on 4th of April, 1985 and thus remained only 13 candidates who were obviously upon opposed. As regards the 7 wards though there were a little more than 7 candidates in each ward, one or two candidates in each ward withdrew and thus there remained only 7 candidates un-opposed in those 7 wards with the result that in all 20 wards there remained only 20 candidates un-opposed. This coincidence in the context of the allegations that all these 20 candidates belong only to one party or group of organisation assumes some obvious sinister implication. Consequently in our opinion the very fundamental concept of process of election and the process of election in various stages did not at all in reality through it ostensibly existed only on paper.

39. Further not only the right of the petitioners but even the right of the independent candidates to contest the election was wiped out on account of the thrust of the situation and the candidates in both these categories were not only handicapped but practically prevented in that field. Though the frantic efforts were made by the petitioners to move the matter so that the nominations could be filed within the scheduled time, no agency could give them either protection or assistance as every one was over awed by the dimensions of the situation and in addition even the police could not permit the petitioners to do so even upto 3-00 p.m. as it involved risk to their life.

40. In an election petition no doubt grievance can be made against particular candidate and therefore, grievance of such a generalised nature against the very foundation of the election involving whole of the election cannot be justifiably made in that petition.

41. Even assuming otherwise it is not difficult to conceive that a finding could be reached by the District Judge in that petition that the riot did occur and which did prevent the petitioners and the independents from the nominations, yet it may not be established that it was so done by the respondents or by their agents or associates. More so as many from the concerned parties were inside the compound when even according to the respondents the entire stone throwing from outside the compound; there could obviously be a blamed it may even be that both parties could not have properly identified the persons collected outside, thought it is obviously futile for the respondents to contend that the petitioners were alone responsible for the same and as such as they cannot take advantage of their own as the basis for this contention as against the petitioners is on the contrary fully destroyed by the material on record. In that event no relief could be granted to the petitioners in any such election petition which would be dismissed though the consequence was apparent. This is obvious having regard to the scope of such an election petition.

42. Apart from the heavy dimension of the situation the other shade is apparent that it affected the larger issue of public interest and caused substantial injury to the public at large, which aspect also could not be covered by the election petition. It is apparent that such a petition would normally be directed to ventilate the individual grievance and it is not as if that this petition is being filed for such restricted reliefs vis-a-vis individual grievance but much larger interest was involved and it expansion can be covered more appropriately by writ petition. Consequently, therefore, the remedy prescribed under section 21 is no remedy available on the facts of the instant case. Secondly even assuming otherwise, still it cannot get the label of an equally efficacious remedy.

43. It is also submitted with justification that in an election petition additional relief can be claimed by a defeated candidate to declare him to be elected if he succeed in the petition. The petitioners or the independent persons could not claim any such relief because basically they could file the nomination and were not in the contest at all. It is further emitted with some justification that under Rule 7 at the time of security it is only the candidates or his agent who is permitted to be present and who can take objection. This opportunity is also lost to scrutinise the nominations of the respondent on the date of scrutiny.

44. The last category which can be carved out is apparent that this was one of the extra-ordinary situations of heavy dimensions involving larger public interest since it was the question of including a popular body to govern the people in that town and which body could not be imposed on the society at large by any such methods. Consequently, on account of its peculiarity and extra-ordinary nature it can be taken out of the preview of an election petition and can be brought with the lignite scope of writ under Article 226 of the Constitution of India.

45. We are aware that such a re-course should not be lightly allowed to be taken and it is only in rare cases that the same may be permitted. The instant case squarely falls in that category as it rear though very much rarely. We are also aware that the caution is levelled time and again in the matter of entertaining such petitions. However, in the pronouncement also some exceptions are carved out and we are satisfied, on a careful consideration of all shades of the matter, that all the categories catalogued herein above collectively and squarely fail in those categories justifying maintainability of writ petition.

46. Reference to a few decisions in that field can be made at this juncture. Reliance was placed on behalf of the respondents on the case of N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist, and others, : [1952]1SCR218 . It pertained no doubt to an issue of election when it was observed that the election includes entire procedure and all stages. It was however observed that law not contemplate two attacks on matter connected with election proceedings, one under Article 226 of the Constitutions during the election process and the other buy petition after the election. That was a matter under the Representation of the People Act and in that context the scope of Article 226 with reference to Article 329 of the Constitution was considered. It is pertinent to note that in that case the writ was filed in the High Court only against the order of the Returning Officer rejecting the appellant's nomination papers on certain grounds. The High Court declined to interfere by reason of the provisions contained in Article 329 sub-clauses (b) of the Constitution. The Supreme Court up held the decision holding that under those circumstance writ under Article 226 of the Constitution did not lie. It was observed that normally rejection of nominating papers could not be challenged at the stage under writ jurisdiction. It was also indicated that a right or liability created by the statute when the remedy product by the statute only must be available of. It was indicated that even that there was fallacy in the argument when it was felt that a single step taken in furtherance of election is equivalent to the election itself.

47. In that context reliance was further placed on behalf of the respondents in Nanhoo Mal and other v. Hira Mal and others, : [1976]1SCR809 . It was no doubt indicted there that the election to the office of the President of the Municipal Board can be challenged by election petition according to the provisions of that Act. The challenge there was based only on some irregularities in following the procedure for election as it did not conform with the provisions of Rule 6 of the said Act pertaining to giving public notice. No doubt it was generally observed that the proper remedy would be only the petition under the Act and not only under Article 226, still that was obviously on the basis of those facts, mainly because the right to vote and stand for election is the creature of the statute. It was, however, indicated in this ratio itself as---

'Whether there can be any extraordinary circumstance in which the High Courts could exercise their power under Article 226 in relation to election it is not now necessary to consider.'

The Supreme Court was concerned with the consequences that the elections should not be delayed or protected by the interference of courts at any intermediary stage before the results of election are over. These observation contain permissibility of extra-ordinary jurisdiction in extra-ordinary circumstances and secondly denial of any relief was though to be essential because the challenge in that was at an intermediary stage and almost on the procedural defects and what might have weighed with the Supreme Court obviously was that the delay at intermediary stage should not be encouraged. Both these decisions, therefore, have their own peculiar facts.

48. In Parmeshwar Mahaseth and others v. State of Bihar and others, : AIR1958Pat149 , it is observed as---

'Where by a writ petition under Article 226 what is challenged is not the election of a particular candidate was, but the validity of the entire municipal election, because of the violation of the essential provisions of the Election Rules and the Act, the writ petition is competent. Rule 62 of the Bihar Election Rules provides for a case where a person challenges the election of a particular candidate. It does not apply to such a case.'

49. The observation on similar lines are made by the same High Court following the earlier decision in Bishwanath Prasad and other v. Ramji Prasad Sinha and others, : AIR1964Pat459 .

50. In Umakant Sing and others v. Binda Choudhary and others, : AIR1965Pat459 , observed as---

'Where the entire as challenged as having been held under statutes of statutory rules which are invalid or by committing illegalities which makes the entire election void, it can be quashed by grant of a writ in the nature of certiorari.'

51. In Sher Sing Budh Singh and another v. The States of Punjab and other, , a Single Judge observed that when the electoral roll was altogether invalid and the mere fact that the election petition was pending will not constitute a bar to the grant of appropriate relief in writ petition for quashing the election of the Gram Panchayat, 'since the Election Tribunal is not empowered to go into the question illegality or illegal preparation of the rolls.'

52. In K.K. Shrivastava etc. v. Bhupendra Kumari Jain and others, : AIR1977SC1703 , the Supreme Court has no doubt deprecated the practice of resort to writ petition where alternate remedy is available and observed that where there is an appropriate or equally efficacious remedy the Court should keep its hands off and this is more so where the dispute relates to an election and where there is statutorily prescribed remedy which almost reads in mandatory terms. It was also indicates that the challenge is not maintainable merely because of plurality of returns of elections. It was, however, indicated that in the said case election petition under Rule 31 of the Election Rules framed by the Bar Council of Madhya pradesh was pending and which precluded the jurisdiction Article 226. It was also no doubt indicated that the foundation for the thinking that where the challenge is to an entire than the writ jurisdiction springs into action was thoroughly wrong. However, even it in this ration the Supreme Court observed as---

'While we need not his case go to extent of stating that if there are exceptional or extra ordinary circumstances the Court should still refuse to entertain a writ petition.'

The observation itself carves out a case consisting of exceptional or extraordinary circumstance granting permissibility of writ jurisdiction.

53. In Pandurang Hindurao Patil v. State of Maharashtra and others, 1983 MLJ 1081, a Division Bench of this Court entertained a writ petition under Article 226 against an order of the Returning Officer rejecting the nominations papers. It was no doubt during the process of the election and it was observed that where an election process is challenged, if the order of the Returning Officer is on the face of it so patently erroneous or with jurisdiction, it would be improper to ask the petitioner to wait till the process of election is over and then challenged that order by election dispute. It was held or the facts of that case as :

'In such a case relief should not be refused merely because the petitioner can pursue another remedy by filing an election petition after the election is held. Each case should be considered on its own facts.'

No doubt the Division Bench was concerned more with the fact that the illegality was so manifest that it could be corrected during the process of election itself so that the further complications could be avoided. However, permissibility to entertain a writ petition in special circumstance is accepted.

54. In a Full Bench decisions of the Punjab and Haryana High Court in Bhoop Singh v. Bar Council of Punjab and Haryana through its Secretary and others, , it was indicated that unless there is an manifest injustice normally the election results should not be up-set under writ jurisdiction over technical or procedural defects. However, permissibility in a fit case is accepted and what should be the concept of manifest injustice has been left to each case on its own facts, though it is indicated that it may refer to an exceptional case which goers to the very root of the matter or involves moral turpitude, etc.

55. The ratio in Titaghur Paper Mills Co. Ltd. and another v. State of Orissa and another, : [1983]142ITR663(SC) , about non permissibility of a writ jurisdiction when an alternate remedy is available cannot be made applicable to the facts on the instant case. There the petitioner obviously had an efficacious remedy not only by way of appeal but even a second appeal under the Sales Tax Act and thereafter to take the case to the High Court. The petitioner was aggrieved by the assessment order which was wrongly computed as per the petitioner. It is in the context of those facts that it was held that the High Court obviously could not go into question about the mode of assessment and several remedies were available to the petitioners.

56. Reliance is placed on yet another ratio in Bar Council of Delhi and another v. Surjeet Singh and others, : [1980]3SCR946 . There the challenges was taken to a particular rule of Bar Council of Delhi Election Rules. It was found ultimately, that the proviso to the said rule was ultra vires State Bar Council and, therefore, was invalid. It was held that it was not within the competence of the State Bar Council to reject the Advocates from the being included on the roll on imposing condition which could fall only within the domain of Bar Council of India. On that basis the appeals filed by the Bar Council of Delhi were dismissed. In that case it was observed that merely because the whole election is being challenged, a writ petition is maintainable even though there is an alternate remedy was not correct. It was further observed that an alternate remedy would fully cover to challenge the election then that remedy alone must be resorted to even though it involves the challenge of the election of the all the successful candidates. However, it was further observed as :

'But if the nature and the ground of the challenge of the whole election or such that the alternative remedy is no remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition to challenge the whole election is still available.'

No doubt in the said case the observations were founded on account of the fact tat the impunged rule was found to be ultra vires and it was observed that the election Tribunal which was the alternate remedy could not be complement to decided that aspect regarding the virtue of the said rules, and therefore, it is indicated in that context that the writ was held maintainable and, therefore, it is not as if that there was any procedural defect or any other error which could be challenged by an election petition. However, these generalised observations that the alternate remedy is no remedy at all or that it cannot be styled as equally efficacious remedy are quite relevant. We have already pointed out in the earlier discussion that the case would squarely fall within this category as in the first instance there is no alternate remedy in the eye of the law and even assuming otherwise it is certainly not an efficacious remedy. Such a situation arises even if any rule or provisions is not challenged as ultra vires. These observations in our opinion would support in favour of maintainability of a writ petition at least in exceptional circumstances.

57. The permissibility of entertaining writ petition after the election is over is apparent from the case in Bar Council of Delhi cited supra and is further accepted in the ratio Babaji Kondaji Garad and others v. Nasik Merchants Co-operative Bank Ltd. Nasik and others, : [1984]1SCR767 . Therefore, completion of election and even declaration of results by itself would not be a bar for entertaining writ petition though in exceptional cases.

58. The learned Counsel for the respondents placed reliance on the ratio in Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and others, : 1985ECR4(SC) , wherein the Supreme Court severely criticised entertaining of writ petition under Article 226 when an alternate remedy is available. It was no doubt indicated the pitfalls and the potential danger suggesting that many times such writ petitions are filed merely for obtaining interim orders and then to prolong the hearing of the petition and this affects the revenue where statutory remedies are available and it is further observed that a writ is not meant to short circuit or circumvent statutory proceeding. That was no doubt a case under the Central Excise Act and entertaining of the petition when alternate remedy was available and granting interim relief affecting the collection of revenue and creating further complications which to some extent had its own contribution in inviting those observations. These are, therefore, peculiar to the facts of the said case. However, in that ratio also the following pertinent observations are made :---

'It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricable mixed up and the prevention of the public injury, and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution.'

It is further clarified that in such categories the Court must have good and sufficient reason to get over the alternative remedy. Those categories are carved out by the Supreme Court itself where writ petition can justifiable be entertained and one such category relates to the extraordinary situation while the second relates to 'the prevention of public injury and the vindication of public justice'. In our opinion the facts of the instant case are clearly covered by these categories inasmuch as extraordinary situation ill-suited for election petition and secondly which is more important that it is necessary to prevent public injury and the vindication of public justice requires such an exercise. As stated the entire democratic machinery has been crushed and there is apparent onslaught on the public interest and it is necessary to vindicate public justice, more so, as the society concerned consisting of the people residing in that town had their interest at stake.

59. It is un-necessary to multiply the rations as the principle is well settled and it application to the facts of the instant case has been amply clarified in the discussion herein above.

60. We have already indicated various view which are catalogued herein above each of which forms a separate category and each individually or taken collectively would squarely fall in the categories carved out even by the Supreme Court making it permissible in entertaining a writ petition in such election matters. The reasons need not be restated since those are elaborately discussed vis-a-vis each category making it further clear the thrust of our finding when the petition was sought to be mis-construed on behalf of the respondents obviously with a desire to lift it from the provisions of Article 226 of the Constitution and make it restrictive only in election petition. Repetition is un-necessary and examined on the touch stone of all these ratios the writ petition in the peculiar facts and circumstance of all case which are extraordinary by themselves fully justify not only of entertaining a writ petition under Article 226 but even allowing the same, especially when the alternate remedy is not available at all and even otherwise, it is most ill-suited and is certainly not an equally efficacious remedy where that forum may not have the competence to afford effective reliefs as also the private and public wrongs were intrinsically mixed up and further especially to vindicate the public interest and consequently to prevent public injury and also to up-hold the high democratic principles which have now been well accepted. As stated at the threshold, if the feeling of frustration which was generated on account of the reaction of various agencies is allowed to be continued and remained intact, even by Court of law, such feeling would transform into a bitter root of frustration which has a potential of generating a feeling of losing confidence in the system of administration of justice. This, therefore, is a fit case justifying, interference to up-hold the well cherished democratic values.

61. The election results of the 20 respondents to all the wards as unopposed successful candidates though purported to have been declared by the Returning Officer, still the further necessary step of the publication of the said names in the gazette before getting finality to the same as per the provisions of the Act has yet to be done. Granting of relief under these circumstances, therefore, would be certainly permissible.

62. Since we are directing fresh elections to be held and for that purpose to reappoint and refix the scheduled dates from the beginning, in view of the past experience we express a note of confidence that to avoid any repeat performance of an untoward incident of any kind from first to the last stage of the election programme all the agencies including the Police Department would take all the necessary precautions and measures to ensure smooth and peaceful implementation of the entire programme. In view of certain developments after filing of the petition as also after passing interim orders, including not making full disclosure in Court about the declaration of the results and not acting on the order of injunction alleged against the Returning and Assistant Returning Officers, giving rise in filing of contempt petition with which we have elaborately dealt with in the said petition, though suffice it is to observe that the attitude and inclination exhibited by the officers and especially by respondent No. 4 during the pendency of this petition in hurriedly declaring the results inspite of at least partial injunction leaves much to be desired and their endeavour and explanation to justify their action is so vulnerable as not to inspite much confidence, it would be better exercise of discretion on the part of the Collector if he appoints some other officers in that capacity at the time of the reappointed schedule of the election.

63. We are tempted to observe that even on this forum when we though that the Government even at this stage in good grace may take action by itself to rectify the mistake and reappoint the election programme setting aside the election already held in such a dubious manner. Exactly contrary stance adopted by the Government in opposing the petition and in maintaining that the election need not be rescheduled springs not only a surprise but also a disturbing element of bitter dis-satisfaction. It would have been more in the fitness of things for the Government to have acted otherwise even at late stage so that the charm of the situation would have been restored instead of which it has now been mutilated. The record reveals that the first respondent was apprised of the situation with a request from all quarters including that Collector to postpone the election inspite of which the Assistant Returning Officer, as per his affidavit, was informed telegraphically not to postpone the election programmes. Even thereafter the representations made by the concerned people were turned down and even on this forum the apparent disinclination to hold fresh elections was not made a secret. The Government obviously cannot claim immunity from being made answerable even in such matters and the caution levelled by the Supreme Court in Ramana Dayaram Shetty v. The International Airport Authority of Indian and others, : (1979)IILLJ217SC and M/s. Kasturi Lal Lakshmi Reddy etc. v. The State of Jammu & Kashmir and another, : [1980]3SCR1338 cannot be over looked when it was repeatedly observed that every action of the Executive Government must be informed with reason and should be free from arbitrariness, especially so as there is a vast and inevitable increase in the frequency with which ordinary citizens come into relationship of direct encounter with the State power holders and further with every activity of the Government as the public element and it must, therefore, be informed with reason and guided by public interest and a further caution was levelled that any such action or decision should stand the scrutiny of non arbitrariness, reasonableness and guided by public interest. Since such unsustainable course has been adopted by the Government no alternative has been left to this Court but to step in for doing justice. The so-called popular local bodies cannot be imposed on the people in such a dubious manner with the flagrant crushing of democratic principles which in turn would effect minds and cherished desire of the people and the society who are to be controlled by such a body which is practically imposed on them almost through back door. Giving fair and equal opportunity to every one in any election has its own charm and the outcome of it is more healthy. The situation in the instant case is exactly otherwise and the contamination, therefore, is necessary to be wiped out which can be done only by interference by the Court. We are thus satisfied, though being made fully aware of the limitations of the statutory caution levelled time and again, that this is a fit case justifying interference in writ jurisdiction whereas non interference on the contrary would be destructive of interest of justice. This in our opinion is that type of extraordinary or rare case where the writ petition not only should be entertained but should be fully allowed so as to instill faith of the people in democratic values.

64. Rule made absolute.

65. The election to the Murum Municipal Council in respect of all the 20 wards wherein respondents Nos. 6 to 26 are claimed to have been declared elected is set aside. The first two respondents are directed to reappoint and arrange the re-schedule of the necessary electoral programme and hold the elections to the Municipal Council, Murum, Taluka Omerga, District Osmanabad, afresh in consonance with the provisions of the Act and the election rules as expeditiously as permissible under the circumstances.

66. Under the circumstances, however, there would be no order as to costs.

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