Smt. Kavita Rajendra Shirgare vs The Returning Officer, For The ...
2016 Latest Caselaw 1437 Bom

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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                            
                                               NAGPUR BENCH, NAGPUR




                                                                             
                                       WRIT PETITION No.2196 OF 2016


            Smt. Kavita Rajendra Shirgare,




                                                                            
            Aged 34 years,
            Occupation : Housewife,
            R/o. Village Pipri (Punarvasan),
            Post : Pipri, Tq. Arvi,
            District Wardha.                                                            :      PETITIONER




                                                          
                               ...VERSUS...
                                 
            1.   The Returning Officer, 
                  for the general Election of 
                                
                  Gram Panchayat, Pipri (Punarvasan),
                  Tahsil Office/Tq. Arvi, District Wardha.

            2.   The Election Officer,  
      


                  for the general Election of 
                  Gram Panchayat, Pipri (Punarvasan),
   



                  Tahsil Office/Tq. Arvi, District Wardha.  :      RESPONDENTS


            =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-





            Mr. U.K. Bisen, Advocate for the Petitioner.
            Mr. A.M. Balpande, Asstt. Government Pleader for the Respondent No.1.
            =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                          CORAM  :   S.B. SHUKRE, J.

th DATE : 12 APRIL, 2016.

ORAL JUDGMENT :

            1.                 Rule.     Rule   made   returnable   forthwith.    Heard   





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finally by consent of learned Counsel appearing for the parties.

2. The order dated 4.4.2016 passed by the respondent No.1

rejecting the nomination form of the petitioner is under challenge

in this petition. The nomination form was filled up for contesting

the general election of Gram Panchayat Pipri (Punarvasan), Tq.

Arvi, District Wardha. The nomination form has been rejected on

the ground that it does not fulfill the requirement of Section 14(j-5)

of the Maharashtra Village Panchayats Act (Act No.III of 1959) (in

short, "said Act"). The requirement is that the nomination form

must be accompanied by a certificate regarding existence of a toilet

attached to the house together a resolution passed by the Gram-

Sabha.

3. It is the contention of the learned counsel for the

petitioner that the nomination forms of other similarly situated

candidates who submitted certificates regarding user of toilet

attached to the house without Gram-Sabha resolutions were

accepted, whereas the petitioner's nomination form, though

accompanied by the said certificate but without resolution of

Gram-Sabha, was rejected.

4. Learned Assistant Government Pleader admits that this

being the first general election of newly constituted Gram-

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Panchayat Pipri (Punarvasan), the respondent No.1 did not insist

upon filing of copy of Gram-Sabha resolution along with certificate

of toilet user while filling up the nomination form in all cases. He

also submits that in other cases, however, there was no objection

taken and whereas in the case of petitioner's nomination form a

specific objection was received and, therefore, the respondent no.1

thought it fit to make an inquiry and verify as to whether the

nomination form did or did not fulfill the requirement of Section

14(j-5) of the said Act. He submits that upon such an inquiry it was

found that the nomination form did not fulfill all those

requirements and, therefore, the respondent No.1 rejected the

nomination form of the petitioner.

5. According to the learned counsel for the petitioner,

respondent No.1 cannot have double standards and if he adopts the

same, it would lead to conducting the elections in an unfair

manner. Learned counsel for the petitioner is right. The

respondent No.1 must have the same standard of judging the

nomination form of the petitioner as the standard used for

accepting or rejecting the nomination forms of others. The

impugned order clearly admits that the certificate of toilet user was

filed along with the nomination form. The only fault found with

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the nomination form filled up by the petitioner was that the

certificate of toilet user was not accompanied by Gram-Sabha

resolution. But, in case of other candidates, for the practical reason

stated earlier, the second requirement of Gram-Sabha resolution

has not been insisted upon. Therefore, this requirement can also

not be made applicable to the case of the petitioner. It would then

follow that the impugned order has to be seen as illegal and

arbitrary.

6. Upon perusal of the affidavit-in-reply filed by the

respondent No.1, one disturbing feature comes to the fore.

Curiously enough, in affidavit-in-reply, the respondent No.1 has

now put up altogether a new story for rejecting the nomination

form. According to him, on 2 nd April, 2016, he sent a letter to the

Secretary of the concerned Grampanchayat to verify as to whether

or not the certificate of toilet user was really issued by him and the

reply that was received by him from the Secretary disclosed that the

certificate was inadvertently and by mistake came to be issued by

him and the Secretary even tendered an apology for the same. The

respondent No.1 has stated that on 4.4.2016, the Tahsildar Arvi

issued a communication to the respondent No.1 and clarified that

the certificate issued by the Secretary should not be considered

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since it was issued by mistake. If this was the real reason, though I

doubt it to be, I do not understand as to why same was not

mentioned in the order dated 4.4.2016 rejecting the nomination

form of the petitioner. It is also not explained by the respondent

No.1 as to why did he mention some different reason in the said

order than what he now says to be the real reason behind passing of

the impugned order. Recording of one reason for rejecting the

nomination form in the order passed in that behalf and informing

the Court in the affidavit-in-reply when that order is challenged

before the Court some another reason, is very serious and in my

view, needs to be dealt with all seriousness by the authority

incharge of the entire election process. To my mind, filing of such

an affidavit-in-reply putting forward altogether different reason

affects the objectivity and fairness of the respondent No.1, who is

the returning officer appointed for conducting the elections fairly.

Such an officer cannot be relied upon and cannot be trusted for his

impartiality. It is doubtful if such officer has the necessary

equipment and attitude to conduct the elections fairly. If fairness of

an election process is at stake because of conduct of a Returning

Officer, democracy at the grass-root level will be put in peril. The

Election Commission may, therefore, take appropriate steps for

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dealing with such conduct of respondent No.1 in the whole matter.

7 In the result, the writ petition is allowed.

8. The impugned order is hereby quashed and set aside.

9. The nomination paper of the petitioner, for the present

be treated as accepted, unless there are some other objections.

10. The State Election Commission shall reconsider the

conduct of the general elections for the Grampanchayat of Pipri

(Punarvasan)) in the light of the observations made in this order.

11. Rule is made absolute in the above terms. No costs.

12. Authenticated copy of this order be supplied to the

learned counsel appearing for the parties.

JUDGE

okMksns