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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.6499/2017
Sau. Shubhangi W/o Digamber Ghagare,
aged 33 Yrs., Occu. Household Work,
R/o At Kalegaon, Post Harsoda,
Tq. Malkapur, Distt. Buldhana. ..Petitioner.
..Vs..
1. State of Maharashtra
through Collector,
Collector Office, Buldhana,
Distt. Buldhana.
2. The Election Returning Officer / Tahsildar,
Grampanchayat Election, 2017, office at
Tahsil Office, Malkapur, Distt. Buldhana.
3. Sau. Jyoti W/o Sahadeo Bathe,
aged 31 Yrs., Occu. Household Work,
R/o At Kalegaon, Post Harsoda,
Tq. Malkapur, Distt. Buldhana. ..Respondents.
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Shri V.S. Giramkar, Advocate for the petitioner.
Shri N.R. Patil, A.G.P. for respondent Nos.1 and 2.
Shri R.D. Karode, Advocate of respondent No.3.
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CORAM : Z.A. HAQ, J.
DATE : 4.10.2017.
ORAL JUDGMENT
1. Heard.
2. Rule. Rule made returnable forthwith.
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3. The petitioner, who is a candidate at the election of Grampanchayat to be held on 7th October, 2017, has challenged the decision of the Returning Officer by which the nomination form of respondent No.3 is accepted. According to the petitioner, respondent No.3 had earlier contested the election of Grampanchayat in 2012 and was elected, the election of respondent No.3 was set aside by the Collector by order dated 1st August, 2013 on the ground that she failed to submit the account of expenses of election within 30 days as required. According to the petitioner, the Collector had not only disqualified the respondent No.3 from continuing as Member of Grampanchayat but had disqualified her for a period of five years from contesting the election. The submission on behalf of the petitioner is that the respondent No.3 could not have submitted the nomination form and she suppressed the fact that Collector has disqualified her for a period of five years by order dated 1 st August, 2013 because of which her nomination form is wrongly accepted by the Returning Officer.
4. The learned A.G.P. has not disputed the factual aspects.
5. The learned Advocate for the respondent No.3, who has put in appearance on caveat, has submitted that the petitioner had not raised any objection before the Returning Officer and now it is not open to the petitioner to challenge the decision of the Returning Officer by this petition. It is ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:04:13 ::: 3 wp6499.17 submitted that only remedy available to the petitioner now would be to file the election petition. To support the submission reliance is placed on the judgment given by the Hon'ble Supreme Court in the case of Durga Shankar Mehta V/s. Raghuraj Singh and others reported in AIR 1954 SC 520.
6. It is undisputed that by order passed on 1st August, 2013 the Collector had disqualified the respondent No.3 from continuing in the office as Member of Grampanchayat and had further disqualified her for a period of five years from contesting the election of Grampanchayat. The disqualification continues till 31st July, 2018. The respondent No.3, being fully aware of her disqualification should not have submitted the nomination form. The learned Advocate for the petitioner has rightly submitted that respondent No.3 has played a fraud and has misrepresented her case before the Returning Officer and, therefore, it would be open for this Court to interfere by exercising extra-ordinary jurisdiction under Article 226 of the Constitution of India. To support the submission reliance is placed on the judgment given by the Hon'ble Supreme Court in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. V/s. Jagannath (Dead) by L.Rs. and others reported in (1994) 1 SCC 1.
7. The judgment given in the case of Durga Shankar Mehta V/s. Raghuraj Singh and others (supra) does not assist the respondent No.3. In this judgment the Hon'ble Supreme Court has considered the provisions of Section ::: Uploaded on - 04/10/2017 ::: Downloaded on - 05/10/2017 02:04:13 ::: 4 wp6499.17 100(1)(c) of the Representation of People Act, 1950. The proposition of the judgment is not that the High Court cannot exercise its extra-ordinary jurisdiction under Article 226 of the Constitution of India even if a case of fraud by a candidate is brought to its notice. I am conscious that the normal rule is that this Court should not interfere with the election process, exercising extra-ordinary jurisdiction under Article 226 of the Constitution of India. However, in the facts of the case, I am of the view that the extra-ordinary jurisdiction is required to be exercised.
8. In view of the above, following order is passed:
(i) It is declared that the nomination form of respondent No.3 for the election of Grampanchayat Kalegaon to be held in October, 2017 stands rejected.
(ii) The respondent No.2 - Returning Officer shall take further consequential steps in the matter.
(iv) A copy of this order, duly authenticated by the Court Sheristedar, be supplied to the Assistant Government Pleader.
Rule made absolute in the above terms.
In the circumstances, the parties to bear their own costs.
JUDGE Tambaskar.
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