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Bombay High CourtEP/30/2019dismissed

Abhijit Wamanrao Awade-Bichukale v. Shivendra Raje Bhosale And 4 ORS.

2021-03-19Hon'Ble Shri Justice M. S. Karnik5 pages

Urmila Ingale

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION ELECTION PETITION NO. 30 OF 2019 Shri Abhijit Wamanrao Awade - Bichukale ....Petitioner Vs.

Shri Shivendra Raje Bhosale and ors.

..... Respondents WITH APPLICATION (L) NO. 1352 OF 2019 The Returning Ofcer .. Applicant In the matter between Shri Abhijit Wamanrao Awade - Bichukale ....Petitioner Vs.

Shri Shivendra Raje Bhosale and ors.

..... Respondents None for the Petitioner.

Mr.S.R.Borulkar a/w Mr.Siddhsen Borulkar i/b Mr.Rushikesh Barge, for Respondent No.1.

Ms.Drishti Shah i/b Ms.Rekha Rajgopal, for Respondent No.4 in EP and for Applicant in Application (L) No. 1352 of 2019. Mr.K.B.Dighe, AGP for the Respondent No.5- State. Mr.

CORAM :

M. S. KARNIK, J.

DATE :

19th MARCH, 2021 P.C. :

.

Learned Counsel Shri Borulkar appears for Respondent No.1. Learned Counsel Ms.Shah appears for 1/5

Respondent No.4. Learned AGP Shri Dighe appears for Respondent No.5. From the record it is revealed that the Election Petition was fled on 09/12/2019. The same was listed on 13/02/2020 when none appeared on behalf of the Petitioner. Thereafter the same was listed on 20/02/2020 when the following order came to be passed.

" None present on the last occasion. No one has appeared even today. If on the next date none appears on behalf of the Petitioner, this Court will be constrained to pass appropriate orders even in the absence of the Petitioner.

2. Stand over to 26 February 2020."

2.

On 26/02/2020, there was again no appearance on behalf of the Petitioner. Notice came to be issued to the Petitioner, returnable on 18/03/2020. On 18/03/2020, again there was no appearance on behalf of the Petitioner. The ofce report indicates that the status of the notice on the India Post website shows that notice is delivered. On 18/03/2020 since there was no appearance on behalf of the Petitioner again matter was adjourned on 16/04/2020. On 08/03/2021, on an application made by the Respondent No.4, following order came to be passed.

"This is an application for declaration that the EVM's consisting of Ballot Units 437, Control Units 2/5

437 and VVPAT 448 which are kept in the custody of the District Election Ofcer are not necessary for the adjudication or determining the dispute in the Election Petition. A prayer is made for release of the Ballot Units 437, Control Units 437 and VVPAT 448 which is kept in the custody of District Election Ofcer.

2.

On the last four occasions when the Petition was listed for admission, none had appeared on behalf of the Petitioner. Since the Civil Application is now fled for the relief mentioned herein before, the Applicant-Returning Ofcer (Original Respondent No.4) to give a private notice to the Petitioner informing him that the Application would be listed on 10.03.2021. An afdavit of service to be fled to that efect. It is made clear that if no representation is made on behalf of the Petitioner, the Application will be decided on its own merits."

3.

The matter then appeared on 10/03/2021. It was recorded that the Petitioner has not been appearing despite service of notice on the Petitioner and therefore, application was adjourned to 17/03/2021. On 17/03/2021 again there has been no appearance on behalf of the Petitioner and only by way of indulgence, matter was adjourned on 19/03/2021 to be placed under the caption "for dismissal".

4.

There has been no appearance on behalf of the 3/5

Petitioner even today.

5.

Learned Counsel for Respondent No.1, 4 & 5 urged that present Petition should be dismissed for non-prosecution as the Petitioner does not seem to be interested in prosecuting the Petition. Reliance is placed on the decision of the Hon'ble Supreme Court in the case of Dr.P. Nalla Thampy Thera Vs. B.L. Shanker and ors. 1984 (Supp.) Supreme Court Cases 631.

6.

From the time the present Election Petition is fled, the Petitioner has not appeared even once for prosecuting the Election Petition. The Petitioner does not appear to be interested in prosecuting the Election Petition and therefore the same is dismissed for non-prosecution.

7.

So far as the Application (L) No. 1352 of 2021 is concerned, for the reasons mentioned in the Application, the same deserves to be allowed and is accordingly allowed in terms of prayer clauses (a) & (b) which read thus : "a. That this Hon'ble Court be pleased to declare that the EVM's consisting of Ballot Units 437, Control Units 437 and VVPAT 448 4/5

which are kept in the custody of the District Election Ofcer are not necessary for the adjudication or determining the dispute in the above Election Petition.

b. That this Hon'ble Court be pleased to release the Ballot Units 437, Control Units 437 and VVPAT 448 which is kept in the custody of the District Election Ofcer."

(M.S.KARNIK, J.) Digitally signed by Urmila P. Ingle Date:

2021.03.19 19:09:16 +0530 Urmila P.

Ingle 5/5