ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally with
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{5} wp9373-14 consent of learned advocates for the parties.
2. This is a group of petitions coming up against orders passed by the Election Officer rejecting nominations filed by the petitioners for the deficiencies referred to in the impugned orders.
3. According to learned advocate appearing for the petitioners, said deficiencies are curable and the petitioners ought to have been given an opportunity as is required under relevant rules. He submits that the deficiencies are not of substantial nature and merely are clerical omissions, which could have been, had those been pointed out, rectified. He, therefore, urges this Court earnestly to direct the election officer to accept nominations after granting the petitioners an opportunity to cure the defects, which is one of the stages, according to him while nominations are scrutinized and in this case that has not been overlooked.
4. Learned advocate for the petitioners places reliance on a decision reported in 2002 (4) Bom.C.R. 270 "Anant Janardan Patil V/s State of Maharashtra & Others" stating that if any irregularity is found, which is rectifiable, an opportunity should have been given as in these present cases, some places are left blank inadvertently,
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{6} wp9373-14 those could have been rectified and cured had the same been pointed out in time. Facts in said judgment are wide apart and would be hardly of any assistance to the petitioners to carry their case forward.
5. Mr. S. T. Shelke, learned advocate appearing for State Election Commission, however relies on a decision reported in 2003 (4) Mh. L. J. 359 "Vinod Pandurang Bharsakade V/s Returning Officer, Akot" stating that division bench has categorically held that the law contemplates only one attack in election matters and that too, after the election is over and therefore, present petitions would not be maintainable. Mr. Shelke points out that said decision has been rendered specifically with reference to section 15 and 15A of the Bombay Village Panchayat Act with which we are presently concerned.
6. Aforesaid judgment appears to have been rendered taking into account purport and intent underlying Article 243-O(b) and scheme under the constitution as has been considered in respect of Article 329 of the Constitution in the judgment reported in AIR 1952 SC 64 "N. P. Ponnuswami Vs The Returning Officer". After taking into account the ratio laid down in Ponnuswami's case the Division Bench went on to observe thus -
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"61. To us, the law appears to be well settled and it is that once the election process has started, it has to be over in accordance with the provisions of the relevant statute. Once an election notification is issued, the process can be said to have started. There are various stage of election. One of such stage is scrutiny of nomination papers. It is thus a part and parcel of election process. The law contemplates only one attack in election matters, and that too, after the election is over. A petition under Article 226 of the Constitution against rejection of nomination paper, therefore, cannot lie. Since in the instant cases, nomination papers of the petitioner have been rejected, keeping in view the mandate of the Constitution in Article 243- O(b) and sections 15 and 15-A of the Act, the remedy available to the petitioners is to file election petition in accordance with provisions of the Act and not to invoke extraordinary jurisdiction of this court under Article 226 of the Constitution."
7. He further refers to a judgment of the Supreme Court in Writ Petition (Civil) No. 121 of 2008 in case of "Resurgence India V/s Election Commission of India and Another" decided on 13thSeptember, 2013. He draws attention of the court to clauses (iii) and (v) of paragraph No. 27 of said judgment, which read thus-
(iii) Filing of affidavit with blank particulars will render the affidavit nugatory.
(v) We clarify to the extent that para 73 of People's Union for Civil Liberties Case (2003) 4 SCC 399 will not come in the way of the Returning Officer to reject the nomination paper when affidavit is filed with blank particulars"
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8. He, therefore, submits that any order of this Court would be meddlesome in the prevailing position. He, therefore, urges the Court to restrain itself from passing any order in favour of the petitioners.
9. Taking into account the legal position as is emerging from the decision relied upon on behalf of the State Election Commission, I do not deem it appropriate to interfere with the orders passed by the election officer, at this stage. All the petitions stand dismissed. Rule is discharged with no order as to costs.
10. Needless to refer to that it would be open for the petitioners to take up all the pleas as are being taken in the writ petitions, if they choose to file election petitions.
[SUNIL P. DESHMUKH, J.]
drp/B14/wp9373-14
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