Hitesh Madhukar Wadekar vs Returning Officer, Gram ...
2021 Latest Caselaw 48 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                      WRIT PETITION NO. 71 OF 2021
                        Hitesh Madhukar Wadekar
                                  Vs.
  Returning Officer, Gram Panchayat, Selu Bazar, Tq. Mangrulpir, District
                            Washim and others
_______________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions            Court's or Judge's orders.
and Registrar's Orders.
                  Shri S.D. Chande, Advocate for petitioner.
                  Shri Amit Chutke, AGP for respondent Nos.1 and 2.


                                 CORAM : MANISH PITALE, J.

DATE : JANUARY 04, 2021.

It is due to extreme urgency projected on behalf of the petitioner, the petition was taken on board.

(2) Heard learned counsel for the petitioner.

(3) The petitioner has challenged the order dated 31.12.2020 passed by the respondent No.1 - Returning Officer whereby the nomination form of the petitioner for election to Gram Panchyat, Selu Bazar, Taluka Mangrulpir, District Washim, has been rejected. The ground on which the nomination form has been rejected is that the petitioner had 3 children while submitting the nomination form and that since he has more than 2 children, he has attracted a disqualification under the relevant position of law.

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         (4)            The learned counsel for the petitioner submits

that although 3 children were been born to the petitioner, one of the 3 children had died on 07.08.2017. It is submitted that, as on the date of filing of nomination form, there are only 2 children alive of the petitioner.

(5) Attention of this Court is invited to the Full Bench judgment of this Court in the case of Subhash Sajesingh Gavit Vs. Returning Officer, ZP Nandurbar and Ors , wherein it has been held categorically that demise of a child can be excluded while computing the number of living children in these three Acts and the number of children that a candidate has on the date of the filing of the nomination paper, would be reckoned.

(6) The aforesaid position of law makes it obviously clear that prima facie the Returning Officer could not have relied upon the birth certificates of the 3 children while passing the impugned order.

(7) Hence, issue notice to the respondents returnable in four weeks.

(8) Mr. Chutke, learned A.G.P. waives notice on behalf of the respondent Nos.1 and 2.

(9) In the meanwhile, there shall be ad interim relief in terms of prayer clause (c), subject to result of the writ petition.

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                (10)           Considering the urgency in the matter the

learned A.G.P. is requested to communicate this order to the respondent No.1 - Returning Officer immediately.

JUDGE

Wagh