BAPPASAHEB RAJENDRA HAWALE Vs THE STATE ELECTION COMMISSION

said judgment of the Apex Court, this Court under Article 226 of the Constitution of India can not entertain a writ petition assailing the rejection of nomination paper on whatsoever ground. The learned counsel also relies on the judgment of the Apex Court in a case of Mohinder Sing Gill Vs. Chief Election Commissioner reported in 1978 (1) S.C.C. 405.

4. The learned counsel for petitioners submit that the judgments of the Apex Court in a case of N. P. Ponnuswami

and Mohinder Singh Gill has been interpreted by the Division Bench of this Court in a case of Mayaraju Ghavghave Vs. Returning Officer reported in 2004(5) Bom. C. R. 146. According to the learned counsel for petitioners, the Division Bench of this Court has considered the judgment of the Apex Court in a case of Election Commission of India Vs. Ashok Kumar reported in 2000 (8) S.C.C. 216, which has considered both the earlier judgments of Apex Court i. e. of N. P. Ponnuswami and Mohinder Singh Gill and it was held by the Division Bench of this Court in a case of Mayaraju Vs. Returning Officer in para 27 as under :

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"27. So far as law laid down by the Division Bench of this Court and ratio emerges from its decision in Vinod Pandurang Bharsakade's case is concerned, the Division Bench of this Court overlooked conclusion No. 2 recorded by the Apex Court in para (32) of the judgment in Election Commission of India's case (cited supra) wherein Apex Court has clearly held that if the petition presented to the Court "calls in question an election", bar of Article 329(b) of the Constitution is attracted whereas any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. The above referred whole concept evolved by the Apex Court viz a viz the words "calling in question the election" used in Article 329(b) of the Constitution, which are para materia with Article 243-O(b) of the Constitution, has been completely overlooked by the Division Bench of this Court in Vinod Pandurang Bharsakade's case (cited supra) and, therefore, restrictive proposition of law, which emerges from the said judgment vis a vis Article 243-O(b) of the Constitution shall not come in the way of the High Court to entertain a petition under Article 226 in appropriate case even against rejection of nomination paper provided such indulgence subserves progress of the election of facilitates completion of the election and, therefore, in view of law laid down by the Apex Court in Election Commission of India's case (cited supra), such proceedings shall not amount to "calling in question an election", consequently legitimizing exercise of power under Article 226 of the Constitution."

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5. Even otherwise the learned Single Judge of this Court in Vacation (Coram : M. T. Joshi, J.) has entertained the present writ petitions and vide order dated 15.11.2012 had re-scheduled the programme and extended the date of withdrawal of nomination papers to 20^thNovember, 2012. By entertaining present petitions, the election process would not be stalled, nor now altered. In view of all the above facts I have entertained the writ petitions.

6. The ground on which the nomination papers of the petitioners are rejected is that, the petitioners have not put their thumb impressions/signatures on the declaration regarding the number of children and the property.

7. The counsel for the respondent strenuously contend that the said defect is fatal and the Returning Officer has properly rejected the said nomination papers for the said defect. According to the learned counsel for the Returning Officer, the Election Commission has issued circulars by virtue of which the submission of declaration has been made mandatory. The learned counsel rely on the circular dated 20^thJuly 2001 and 15^th March, 2004. The learned counsel rely on the judgment of the

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learned Single of this Court in a case of Uttamsing Rambhau Chavan Vs. Ganesh Shivsingh Chavan and another

reported in 2007(2) Mh. L. J. 271 to substantiate the contention that, when there is no provision in the Act or Rules, the State Election Commission can issue appropriate orders and directions in this respect. According to the learned counsel, the directions issued for submission of declarations is not inconsistent with the provisions of the Act and the Rules and as such, non compliance of the same entails rejection of nomination paper.

8. The learned counsel for petitioners submit that, the learned Single Judge of this Court in Writ Petition No. 6475/2010 vide order dated 21^stJuly 2010 had considered the fact of non submission of declaration in Annexure - II i. e. the thumb impression was not put on the same and this Court in the said petition had set aside the order of rejection of nomination paper. The learned counsel also rely on the judgment of learned Single Judge of this Court in a case of Santosh Bhujbal Vs. State Election Commission delivered in Writ Petition No. 7253/2007 dated 12^thDecember, 2007.

9. According to the learned counsel, the nomination paper is

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to be presented as per Rule 8 of the Bombay Village Panchayat (Election) Rules. The said Rule requires a candidate to fill in the nomination in Form 'A'. The learned counsel contend that there is no dispute that Form 'A' was properly signed by the petitioners. The scrutiny is required to be made as per Rule 11 and the Returning Officer can reject the nomination paper only if the candidate is disqualified or not qualified under the Act and the Rules or that the candidate has failed to comply with any of the provisions required by these Rules or the Act. According to learned counsel, there was no flaw in the nomination paper i. e. Form 'A'. The learned counsel submit that the said circulars of Election Commission would not have binding force and the nomination papers could not have been rejected only on the ground that declaration is not signed. The petitioners were present. Even they were not given opportunity to correct the said defect, though they asked the Returning Officer to allow for the same. The learned counsel submit that statements made in the petitions have not been controverted by the respondent. The learned counsel submit that, no objection was raised to the nomination paper.

10. With the assistance of learned counsel I have gone through

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the order. Sec. 13 of the said Act lays down the persons qualified to vote and be elected. As per Sec. 13(1) every person whose name is in the list of voters shall, unless disqualified under this Act or any other law for the time being in force, be qualified to vote at the election of a member for the ward to which such list pertains. Clause 2 of Sec. 13 lays down that, every person not less than 21 years of age on the last date fixed for making nomination and whose name is in the list of voters shall unless disqualified under this Act or under any other law for the time being in force, be qualified to be elected for any ward of the village. As per Rule 8 of the Bombay Village Panchayat (Election) Rules, the candidate is required to fill in the nomination in Form 'A' and the scrutiny of the nomination paper has to be done as contemplated under Rule 11. Rule 11 lays down that at the time of scrutiny the Returning Officer shall allow all such persons i. e. the intending candidates and any other person duly authorized in writing by such intending candidate reasonable facilities for examining the nomination papers of the intending candidates and the Returning Officer can reject the nomination if the candidate is disqualified or is not qualified under the Act or these Rules or the candidate has failed to comply with any of the provisions required by the Rules or the

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Act. Sub Rule (2-A) of Rule 11 lays down a word of caution that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of substantial character. Sub Rule (3) of Rule 11 also lays down that production of certified copy of an entry made in the list of voters shall be conclusive evidence of the right of any voter named in that entry to stand for election, unless it is proved that the candidate is disqualified.

11. Perusal of the aforesaid provisions of the Act and the Rules it is manifest that a person whose name appears in the list of voters would be deemed to be qualified to contest the election. It is also manifest that as per Rule 8, the candidate intending to contest the election is required to fill in the nomination paper as laid down in Form 'A'. In all these matters it is not disputed that the candidates have filled in the Form 'A' and there is no defect in the same.

12. The Election Commission has issued some directions and guidelines. There cannot be any dispute in the proposition that the Election Commission can issue guidelines and directions in respect of the matters not covered by the Act and the Rules. The question would be that whether the error in not complying with

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the same on the date of filling the nomination form would be fatal or the same could have been allowed to be cured at the time of scrutiny. The circulars suggest that the said declarations are required to be given so as to facilitate the Returning Officer to deal with the objections. The said circular dated 15.03.2004 further lays down that non filing of declaration would be considered as violation of the said order of the Election Commission and Returning Officer at the time of scrutiny can reject the nomination for non submission of the declarations. The said circular further states that the declaration given by the candidate shall be considered by the Returning Officer and he would not be entitled to verify the correctness of the same.

13. One thing is explicitly clear that, these declarations are not contemplated by the provisions of the Act or Rules. But they are required to be given as per the orders of the Election Commission. It is not clear from the circulars which are produced as to whether the same has been issued under Article 324 of the Constitution of India.

14. Be that as it may, the fact is that the circulars are in existence. It cannot be a matter of debate that the declaration

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should be given, but the moot question would be whether the said defect could have been cured. Rule 11(2) of the Rules would not squarely apply as it cannot be said that the candidate has failed to comply with any of the provisions required by these Rules or the Act as filing of such declaration is not contemplated by any provisions of the Act or Rules. Meaning thereby that said defect would not be of substantial character and the Returning Officer ought to have afforded an opportunity at the time of Scrutiny to allow the candidates to correct their defect of not signing the said declaration. The purpose of declaration would be to facilitiate the returning officer to verify the facts. It is also not disputed that the declarations were given, but only thumb impressions/signatures were not affixed on the said declaration. The petitioners have categorically stated that, they were present at the time of scrutiny and they had asked the Returning Officer to allow them to correct the said defect that is to sign the said declarations, but they were not allowed. The said fact is not controverted by the respondents.

15. In view of the above, as the Returning Officer had not afforded an opportunity to the petitioners to put their thumb impression/signatures on the declarations, which were submitted

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along with necessary information and further that list of valid contesting candidates is not yet published, the order rejecting the nomination papers on that count will have to be quashed and set aside and is hereby quashed and set aside.

16. The Returning Officer shall afford an opportunity to all the petitioners to put their signatures/thumb impressions on the said declarations during the course of the day and if signatures/thumb impressions are put on the declarations, the nomination papers of the petitioners be accepted.

17. The learned counsel for the Returning Officer shall intimate this order to the concerned Returning Officers. The District Co-ordinator of Elections for Gram Panchayat/Deputy Collector (G.A.D.) Beed Mr. Ubale is present in the Court and the learned counsel have instructed him in this regard. Rule is made absolute in above terms, however, with no order as to costs.

Sd/-

[ S. V. GANGAPURWALA, J. ]

bsb/Nov. 12

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