Bombay High Court
Smt. Parvatabai Vakila Pawar vs Returning Officer Cum Tahsildar, ... on 12 October, 2017
Bench: Z.A. Haq
1 WP6322.2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No. 6322/2017
Smt. Parvatibai Vakila Pawar
Aged about 48 years, Occ. Household,
R/o Prabhag No. 2, Gram Panchayat Krishna,
Tahsil and District Washim
..... PETITIONER
...V E R S U S...
Returning Officer cum Tahsildar, Washim
Tahsil and District, Washim
... RESPONDENT
=====================================
Shri R.S. Gahlot, Adv h/f Shri A.M. Ghare, Adv for the petitioner
Smt. M.A. Barabde, AGP for the respondent
=====================================
CORAM:- Z.A. HAQ,J.
DATED :- 12 th October,
201
7
ORAL JUDGMENT :-
1] This Court passed an order on 26/09/2017 directing
the respondent to provisionally accept the nomination form of the
petitioner from Prabhag 2(c) and permit her to contest the election.
This Court had directed that the result of the election of Prabhag 2(c),
shall not be declared without seeking the order of this Court. Today in
the morning session, when the matter was called out, a submission was
made on behalf of the petitioner that the respondent be directed to
produce the result of the election before this Court and if is found that
the petitioner is elected, then the petition will have to be taken up for
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hearing, otherwise if the petitioner has not secured enough votes to get
elected, the petition can be disposed as infructous. The learned
Assistant Government Pleader, after taking instructions, assured that
the result would be produced before the Court in the afternoon session.
Accordingly, an order is passed in the morning session directing the
returning officer to produce the result of the election. The result of the
election is produced. The petitioner has secured the highest number of
votes, therefore, the petition is taken up for hearing.
2] RULE. Rule made returnable forthwith.
3] By this petition, the petitioner has challenged the
decision of the Returning Officer by which the nomination form of the
petitioner is rejected on the ground that she has not put her
signature/thumb impression at all the places wherever required.
According to the returning officer, though the petitioner has put her
thumb impression at various places on the nomination form, she has not
put her signature/thumb impression below the declaration that she is
required to give in the prescribed format titled as "iz'u mRrj".
4] The learned advocate for the petitioner has submitted
that the form titled as "iz'u mRrj" is an additional document which is
required to be submitted by the candidates and it is not the part of the
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statutory format as per form 'A' under sub-rule 2A of Rule 11 of the
Maharashtra Village Panchayats (Elections Rules) 1959 and therefore, if
the petitioner has failed to put her thumb impression below the
declaration on this form, the nomination form of the petitioner could
not have been rejected. Alternatively, it is submitted that even if it is
held that the candidate has to sign below the declaration, then it cannot
be said that there is substantive defect which entails the consequences
of rejection of the nomination paper. It is submitted that it was
obligatory on the part of the returning officer, as laid down in sub rule
2A of Rule 11 of the Rules of 1959, to grant an opportunity to the
petitioner to remove the deficiency by putting her thumb impression on
the form.
5] Though, in the reply filed before this Court, the
returning officer has stated that at the time of scrutiny it was found that
the petitioner has not put her thumb impression on the form of affidavit
regarding the declaration of small family and below the declaration in
the form titled as "iz'u mRrj" and the petitioner was asked to put her
thumb impression at both the places, and the petitioner put her thumb
impression on the form of affidavit regarding small family but again
failed to put her thumb impression on the form titled as "iz'u mRrj" , this
reason is not recorded in the impugned decision. The facts on record
show that the returning officer has not acted in consonance with the
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requirements of sub-rule 2A of Rule 11 of Rules of 1959. The returning
officer has committed an error in rejecting the nomination form of the
petitioner because of defect which cannot be said to be of a substantial
character and that too without affording an opportunity to the
petitioner to remove the defect. In view of the above, following order is
passed:-
O R D E R
a] The impugned decision of the returning officer to
reject the nomination form of the petitioner, is quashed.
b] It is declared that the petitioner is entitled to be
treated as a candidate validly nominated at the Gram
Panchayat elections from Prabhag 2(c) held on
07/10/2017.
c] The returning officer is directed to declare the result
of the election.
Rule is made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
Ansari
