Bombay High Court
Smt. Anusaya Diwakar Tikhade vs The Returning Officer, For The ... on 12 April, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.2197 OF 2016
Smt. Anusaya Diwakar Tikhade,
Aged 43 years,
Occupation : Housewife,
R/o. Village Haibatpur, Post : Wathoda,
Tq. Arvi, District Wardha. : PETITIONER
...VERSUS...
1. The Returning Officer,
for the general Election of
Gram Panchayat, Haibatpur,
Tahsil Office/Tq. Arvi, District Wardha.
2. The Election Officer,
for the general Election of
Gram Panchayat Haibatpur,
Tahsil Office/Tq. Arvi, District Wardha. : RESPONDENTS
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Mr. U.K. Bisen, Advocate for the Petitioner.
Mr. A.M. Balpande, Asstt. Government Pleader for the Respondent No.1.
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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 Haibatpur, 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-
Panchayat Haibatpur, the respondent No.1 did not insist upon filing
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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
the nomination form filled up by the petitioner was that the
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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
since it was issued by mistake. If this was the real reason, though I
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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
dealing with such conduct of respondent No.1 in the whole matter.
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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
Haibatpur (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
