Bombay High Court
Milind Baburaoji Kale vs Returning Officer, Election To ... on 5 October, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.6527/2017
Milind Baburaoji Kale,
aged about 38, Occu. Agriculturist,
R/o Chincholi Kale, Tq. Chandur Bazar,
Distt. Amravati. ..Petitioner.
..Vs..
1. Returning Officer,
Election to Gram Panchayat Chicholi,
Tahsil Office, Tq. Chandur Bazar,
Distt. Amravati.
2. Extension Officer, Chandur Bazar,
Sachin Sukhdeorao Deshmukh,
aged about 35, Occu. Agriculturist,
R/o Chandur Bazar, Distt. Amravati. ..Respondents.
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Shri N.A. Gawande, Advocate for the petitioner.
Smt. M.A. Barabde, A.G.P. for respondent No.1
Shri Mangesh Bute, Advocate for respondent No.2.
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CORAM : Z.A. HAQ, J.
DATE : 5.10.2017.
ORAL JUDGMENT
Heard.
2. Rule. Rule made returnable forthwith.
3. The petitioner submitted his nomination form for the election of
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Grampanchayat scheduled on 16th October, 2017. The respondent No.2 raised
objection for acceptance of nomination form of the petitioner on the ground
that he is convicted for the offence under Section 138 of the Negotiable
Instruments Act and is sentenced to undergo imprisonment for three months
and that the petitioner has suppressed this fact while submitting the
nomination form. The Returning Officer upheld the objection of the
respondent No.2 and rejected the nomination form of the petitioner. Being
aggrieved by this decision of the Returning Officer, the petitioner has filed this
petition.
4. The leaned A.G.P. and the learned Advocate appearing for the
respondent No.2 on caveat relied on the provisions of Section 14(1)(a)(ii) of
the Maharashtra Village Panchayats Act (for short "Act") to support the
impugned decision. The learned Advocate for the respondent No.2 has further
submitted that the petitioner misrepresented and had not given details as
required in the nomination form about the pendency of prosecution or
conviction and sentence.
5. The Advocate for the petitioner has rightly argued that
disqualification under Section 14(1)(a)(ii) of the Act would be attracted only if
the person is sentenced to imprisonment for not less than six months and as
the petitioner is sentenced to imprisonment for three months, there cannot be
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disqualification under Section 14(1)(a)(ii) of the Act. It is submitted that the
petitioner has challenged the judgment passed by the learned Magistrate
convicting and sentencing him and the order of sentence is suspended. It is
further submitted that the original complainant has not filed any appeal to
challenge the judgment passed by the learned Magistrate and, therefore, now
there is no chance of enhancement of the sentence. It is submitted that in any
case, disqualification under Section 14(1)(a)(ii) of the Act cannot be attracted
unless there is conviction and sentence for not less than six months.
As far as the other submission made by the Advocate for the
respondent No.2 is concerned, the Advocate for the petitioner has argued that
the details of prosecution pending against the proposed candidate are required
to be given as per Clause (1)(A) of the nomination form if prosecution is
pending against that proposed candidate and as prosecution was not pending
against the petitioner, he was not required to give details as per Clause (1)(A)
of the nomination form. It is submitted that the details as per Clause (1)(B) of
the nomination form are required to be given if the proposed candidate is
sentenced for one year or more and as in the case of the petitioner the
sentence is of three months, the petitioner is not required to give details as per
Clause 1(B) of the nomination form. It is submitted that the petitioner has not
suppressed anything which was required to be disclosed in the nomination
form.
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6. After examining the provisions and the facts on record, I find
substance in the submissions made by the learned Advocate for the petitioner.
In my view, the petitioner cannot be deprived of his statutory right
of contesting the election on the extraneous ground that the petitioner has not
given the details of prosecution or conviction or sentence when there is no
requirement to furnish the details of prosecution which has concluded and
there is no requirement to furnish details of conviction if the sentence is not for
one year or more. The decision of the Returning Officer on this count is
unsustainable.
7. Apart from this, the Returning Officer has rejected the nomination
form of the petitioner recording that the petitioner has not submitted copy of
judgment passed by the learned Magistrate convicting him and sentencing him.
The right to contest election is a statutory right conferred by the provisions of
the Maharashtra Village Panchayats Act. The petitioner could not have been
deprived of his statutory right unless sufficient material was placed before the
Returning Officer showing that he incurred disqualification and he cannot be
permitted to contest the election. The Returning Officer has committed an
error by relying on the bare objection of the respondent No.2 and disqualifying
the petitioner. The burden could not have been placed on the petitioner. The
respondent No.2 should have been called upon to substantiate the objection
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taken by him.
8. In view of the above, I find that the impugned decision is
unsustainable.
9. Hence, the following order:
The impugned decision is quashed.
The respondent No.1 - Returning Officer is directed to accept the
nomination form of the petitioner and to take all necessary consequential steps
in the matter.
Rule is made absolute in the above terms.
In the circumstances, the parties to bear their own costs.
The learned Advocate for the petitioner has submitted that the
symbols would be allotted today.
The learned A.G.P. shall immediately intimate this order to the
respondent No.1 - Returning Officer.
This judgment is dictated in Court at 4.15 p.m.
JUDGE
Tambaskar.
