Godavari Narayan Kale vs The State Election Commission ...
2016 Latest Caselaw 1582 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                          
                           BENCH AT AURANGABAD

                         WRIT PETITION NO. 4052 OF 2016




                                                  
              Godavari Narayan Kale,
              Age : 24 years, occup. Household,
              R/o Khodepuri, Tq. & Dist. Jalna             .. Petitioner




                                                 
                               versus

     01.      The State Election Commission,




                                       
              Through Additional Collector,
              Jalna, District Jalna.

     02.      M. M. Kadam,
                             
              Agricultural Officer,
              Panchayat Samiti Jalna @
                            
              Returning Officer for General
              Election of Village Panchayat,
              Khodepuri, Tq. and Dist. Jalna

              [Respondent no. 2 deleted as per
      

              Court's order dated 06-04-2016]
   



     03.      The Grampanchayat Khodepuri,
              Through Gramsevak at Khodepuri,
              Tq. and Dist. Jalna

     04.      The Tahsildar, Jalna,





              Officer appointed by the State
              Election Commission

     05.      Govind Radhakisan Dhavale,
              Age 40 years, occup. Agril.,





              R/o Khodepuri, Tq. & Dist. Jalna             .. Respondents

                        --
     Mr. Girish B. Kulkarni, Advocate for petitioner
     Mr. S. T. Shelke, Advocate for respondent no. 1 and 4
     Respondent no. 2 deleted as per court's order dated 06-04-2016
     Mr. G.O. Wattamwar, Asstt. Govt. Pleader for respondent-State
     Mr. Aniruddha A. Nimbalkar, Advocate for respondent no. 5




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                                       CORAM :           SUNIL P. DESHMUKH, J.

                                       DATE :            16TH APRIL, 2016

     ORAL JUDGMENT :




                                                                
     1.       Rule.      Rule made returnable forthwith. Heard learned

     counsel for parties finally, by consent.




                                                               
     2.       Petitioner is before this court,                aggrieved by rejection of

her nomination by election officer upon an objection raised by

respondent no. 5 that the nomination submitted by petitioner

suffers an infirmity as in the same she refers to contest election

from a seat reserved for Other Backward Class (hereinafter for

brevity, 'OBC') (women) category. Petitioner has been

provisionally allowed to contest the election from ward no. 2 in

elections to gram panchayat, Khodepuri Tq. and Dist. Jalna,

under an interim order passed by this court on 06-04-2016.

3. It is an indisputable fact that the ward i.e. ward no. 2

from which petitioner sought to contest has been reserved for

OBC (general) category. The petitioner contends that with her

limited educational level she did not appreciate subtle

distinction between OBC (general) and OBC (women) categories.

According to learned counsel for petitioner since the seat had

been reserved for other backward class and petitioner being

under impression that she being lady, it would be pertinent for

her while submitting nomination, to make reference to her

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gender in the form and accordingly under such a belief she had

submitted her nomination and had also tick marked in

nomination form the box referring to OBC (woman) category.

4. It is contended that when it is not disputed that petitioner

belongs to OBC and is a woman and that seat is reserved for

other backward class, her application accordingly ought to have

been considered for the seat for which the election to said ward

no. 2 had been declared.

5. Having regard to aforesaid, according to learned counsel

for petitioner, additional reference to gender in the application

form would not render the application invalid since the

ward/seat is not meant for and reserved at all for OBC (women).

The fact that the petitioner had submitted nomination also

cannot be disputed. In the circumstances, the view which was

plausible ought to have been taken, rather than taking up

narrow, parochial, technical approach.

6. The next submission on behalf of the petitioner is that the

objector taking exception to her nomination does not qualify to

be objector having regard to rule 11 of the Maharashtra Village

Panchayats Election Rules, 1959 since the objector does not

show that he is either contesting candidate or for that matter

objection is on his authorization.

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7. It is being submitted that having regard to the scenario,

the so called mistake on petitioner's part in indicating category

as woman having occurred under inadvertence and mis-

impression cannot be said to be of substantial nature considering

that petitioner belongs to other backward class for which the

seat was reserved and that she had applied for said seat from

the very class for which the ward had been reserved. In the

circumstances, rejection of her nomination is on technical

ground, or for a defect if it is at all, which, in the facts of the

case, cannot be said to be of substantial nature.

8. Learned counsel appearing for petitioner makes reference

to and places reliance on a decision of Division Bench in the case

of Anant Janardan vs. State of Maharashtra, reported in 2002

(2) Mh.L.J. 238, and particularly refers to head note (a) which

reads thus;

'' (a) Bombay Village Panchayats Election Rules, 1959, RR. 8 and 11 (2-A)- Election in ward reserved for Scheduled Tribes - No format prescribed under Rules of 1959 for submitting caste certificate along with nomination form - Returning Officer rejecting nomination form

as it was not accompanied by Scheduled Tribe certificate in prescribed format - Defect not of substantial character so as to entail rejection of nomination paper - Order rejecting nomination paper set aside.

In Gram Panchayat Election, for the ward reserved for Scheduled Tribe, nomination form of the petitioner who claimed to

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belong to Mahadeo Koli, notified Scheduled Tribe, was rejected on the

ground that the Scheduled Tribe certificate annexed to the nomination form was not in the prescribed format as provided under G. R. dated

29-10-1960. In writ petition challenging the validity of the order of the Returning Officer,

Held, that neither the Bombay Village Panchayats Election Rules, 1959 nor the prescribed form provides for a format for submission of caste certificate. The caste certificate had been issued

by the Executive Magistrate and there being no prescribed format for tending such caste certificate along with nomination form, the

Returning Officer could not have insisted on the caste certificate being tendered in the prescribed format. Government Resolution dated 29-

10-1960 is to be adhered to by issuing authority. Merely because the issuing authority of caste certificate did not follow the Government Resolution dated 29-10-1960, that will not render the caste certificate

issued by the said authority invalid. The defect in the caste certificate annexed by the petitioner along with the nomination form was not of

substantial character. Ground for rejection of the nomination paper was untenable in the eye of law. ''

9. Mr. Aniruddha Nimbalkar, learned counsel appearing on

behalf of contesting respondent no. 5 - objector in the first place

clarifies that it is not a case that respondent no. 5 is not running

the contest for concerned ward from which the petitioner is

contesting, for, he has firm instructions that respondent no. 5 is

also a candidate from said ward. As such, according to him,

technical objection to his locus standi is untenable.

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10. Mr. Nimbalkar further submits, the ground which has been

taken in the petition that mistake has occurred under oversight

may turn out to be improper or incorrect, for, all over the

application wherever category is to be mentioned, the same is

with bracket-suffix showing her gender. Under the

circumstances, he submits, ground of mistake being due to

oversight is not available to the petitioner.

11. Learned counsel for respondent no. 5 submits that having

regard to aforesaid, deficiency/defect or extra information

supplied by the petitioner about her gender is a defect or

deficiency of substantial nature, for, while the seat had not been

reserved for other backward class (women) category, she

applied from said category.

12. Mr. Nimbalkar refers to and relies on two decisions, one in

the case of Harjit Singh Mann vs S. Umrao Singh, reported in 1979 DGLS

(Soft) 503 = 1980 AIR (SC) 701, and another in the case of Vinod Natha

Bhagat vs. Returning Officer, Nimdari, reported in 2005 (4) Bomb.C.R. 522.

13. In the first case, it has been considered that an application

submitted beyond prescribed period pursuant to the rules could

not have been considered and had been rejected by returning

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officer. In the circumstances, it was considered by the supreme

court that rejection by returning officer was proper and

nomination cannot be said not to be suffering from substantial

defect.

14. The second case of Vinod Natha relied on by Mr. Nimbalkar,

referred to supra dealt with peculiar facts as the ward number,

from which applicant was seeking to contest the election, was

not mentioned in the nomination form. In the circumstances, the

supreme court in paragraph 7 of the judgment considered thus;

'' 7. Having noted the rival submissions, we cannot ignore that whenever the election process starts unless there is some objection

going to the very root of it, the same is not to be halted. That is the mandate of Article 243-O of the Constitution and which is already

enshrined in Section 15 of the Bombay Village Panchayats Act. Mr. Sugdare submitted that although the name of the ward is not mentioned, the number of ward wherefrom the candidate is going to

vote in the election has been mentioned. Now, these are two different things. It is quite possible that a candidate may be voting from one ward but may be contesting from another ward. Merely because he

has mentioned the number of the ward wherefrom he is going to vote in the election, it cannot be said that he has mentioned the ward wherefrom he is going to contest. Besides, apart from these three candidates i.e. the petitioners herein, the other candidates from that very ward knew what is the name of the ward and they have mentioned it in their forms. If this was the problem for the entire village, there was no reason as to why all other contestants in the two other wards

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have mentioned the name of their ward wherein the elections are going

to be held. We cannot say that the Election Officer has played any role in this on account of this failure on the part of the petitioners or that it

is so done for the benefit of the somebody else. ''

It was in the peculiar facts and situation of that case that

the court had considered that rejection of nomination form by

returning officer was proper.

15. In the present case, the factual position that the seat from

the concerned ward i.e. ward No. 2 has been reserved for OBC

(general) category is not in dispute. So is the case in respect of

that the petitioner comes from OBC category. Nomination form

contains various boxes, inter alia, referring to OBC (Women)

category where candidates are supposed to tick mark from the

category from which they seek to contest. In the present

matter, literacy level of the petitioner does not appear to be

higher. The petitioner being lady is also not disputed. While

indicating her class in the application form, her intention appears

to refer to her category as OBC and additionally she thought it

pertinent to refer to her gender, she being a lady. Having regard

to that ward has been reserved for OBC (general) category and

petitioner belongs to OBC category being not in dispute, gives

sufficient indication that the petitioner has plainly referred to her

gender and reference to the same does not appear to be

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intentional or deliberate. No advantage can be said to have

been gained by petitioner by making reference to her gender in

the application form. It is not in dispute that the petitioner has

applied for contest from ward no. 2 which has been reserved for

OBC (general) category. The intention as such will have to be

considered. Reference to the gender in the application form

and a tick marking would not be a discrepancy/deficiency of

such a substantial nature so as to incur disqualification, for, the

application pointedly makes it clear that it was meant for ward

no. 2, which had not been, in fact, reserved for OBC (women)

category but for OBC (general).

16. Having regard to aforesaid, it appears that the seat in the

present case was reserved for OBC (general) category and the

petitioner was seeking to contest the election she being from the

other backward class. However, having regard to her educational

level and understanding, she did not realize difference between

reference to ' other backward class (general) ' and ' other

backward class (women) ' while referring to her gender in the

application form. However, petitioner had submitted nomination

from other backward class category and her intention all along

appears to have been so depicted in the same.

17. In the circumstances, the defect in nomination does not

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appear to be of such a substantial nature as sought to be

claimed by respondent no. 5 that petitioner deserves to be kept

away from the contest that is taking place and having regard to

the interim order passed by this court, it is being stated that the

petitioner has already been allotted symbol and polling is

scheduled tomorrow.

18. As such, writ petition is allowed in terms of prayer clause

(B), keeping it open for respondent no. 5 if he desires to

question the election, if any, of petitioner on the ground of

nomination form by resorting to remedies as may be available

and/or advised.

19. Rule made absolute accordingly. Writ petition stands

disposed of.

SUNIL P. DESHMUKH, JUDGE

pnd