Bombay High Court
Chhya Gopal Gavhane vs The State Of Maharashtra And ... on 4 January, 2021
Bench: Mangesh S. Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION (STAMP) NO.101 OF 2021
Chhaya w/o Gopal Gavhane,
Age : 26 years, Occu. Household,
R/o Mhalsapur, Tq. Sengaon,
District Hingoli PETITIONER
VERSUS
1. The State of Maharashtra,
through the Secretary to the
Government of Maharashtra
in Rural Development Department,
Mantralaya, Mumbai
2. The State Election Commission,
Maharashtra,
New Administrative Building,
Opp. Mantralaya, Madam Cama Road,
Mumbai
3. The District Election Officer/
Collector, Hingoli
4. The Returning Officer,
appointed for holding the
elections to Grampanchayat,
Mhalsapur, Tq. Sengaon,
District Hingoli, Tahsil Office,
Sengaon, District Hingoli RESPONDENTS
----
Mr. Dhananjay M. Shinde, Advocate for the petitioner
Mr. S.B. Pulkundwar, A.G.P. for the respondent Nos.1 and 3
Mr. A.B. Kadethankar, Standing Counsel for respondent Nos.2 and 4
----
CORAM : MANGESH S. PATIL, J.
DATE : 04.01.2021
2 WPST101-2021
ORAL JUDGMENT :
Heard.
2. Rule. The Rule is made returnable forthwith. With the consent
of both the sides, the matter is heard finally at the stage of admission.
3. The petitioner filed a nomination for election to the
Grampanchayat, Mhalsapur, Taluka Sengaon, District Hingoli from Ward
No.1. By the impugned order, the respondent - Returning Officer has
rejected her nomination form on the ground that she had tendered passbook
of bank account which was old one.
4. Mr. D.M. Shinde, learned Advocate for the petitioner, referring to
Rule 83 of the Conduct of Elections Rules, 1961 framed under the
Representation of the Peoples Act, 1951. Section 77 of the Representation of
the Peoples Act, 1951 and particularly the Circular dated 15.10.2013, issued
by the Election Commission of India to the Chief Electoral Officers of all the
States, submits that law does not require a new or fresh account to be
opened. The impugned order, which insists for opening of fresh account is
de hors the provisions of any law. The petitioner had very well tendered a
passbook showing existence of an account in her name. The defect was also
otherwise curable as contemplated under rule 11 of the Grampanchayat
Election Rules. The Returning Officer ought to have notified her the objection
and allowed to cure it. There would be only one candidate in the fray if
3 WPST101-2021
the nomination of the petitioner is rejected. He would then submit that this
Court in similar set of facts and circumstances, in the matter of Avinash
Lobhaji Patole Vs. The State of Maharashtra and others; Writ Petition
No.11923 of 2017, decided on 28.09.2017, had allowed the Writ Petition and
permitted the petitioner therein to contest the election.
5. Mr. Shinde, the learned Advocate would also submit that the
petitioner at the time of scrutiny had opened a new account and was ready
with the passbook for being tendered to the Returning Officer, which he
refused to accept. This is a specific ground being raised in the petition. This
conduct of the Returning Officer is inconsistent with the mandate of Rule 11
of the Grampanchayat Election Rules and the petition be allowed.
6. Mr. A.B. Kadethankar, learned Advocate for the State Election
Commission submits that no fault can be found with the impugned order. The
petitioner was expected to open a fresh account if she wanted to file a
nomination form. Even she was alive to this requirement and that is why
even now she alleges that she was ready with passbook to demonstrate that
she had opened new account. There is no record to show that she had, in
fact, made an attempt to tender the passbook of the new account opened by
her at the time the scrutiny was undertaken by the Returning Officer. The
Returning Officer has taken a plausible view for not opening the new account
by the petitioner.
4 WPST101-2021
7. Mr. Kadethankar, learned Advocate also refers to the decisions in
the case of Vinod Pandurang Bharsakade vs. Returning Officer, Akot and
Anr.;2003 (4) Mh.L.J. 359 and Election Commission of India vs. Shivaji &
Ors.; AIR 1988 SC 61 and submits that the election process is already
underway. Today is the date for allotment of symbols. The clock cannot be
set back and the petition be dismissed.
8. True it is that this Court in the case of Avinash Lobhaji Patole
(supra), in somewhat similar state-of-affairs, allowed the petitioner therein to
contest the election by referring to the judgment of Division Bench of this
Court in the case of Anant Janardan Patil vs. State of Maharashtra and
others; 2002 (2) Mh.L.J. 238 and observing that there is no law requiring a
candidate to open a fresh bank account. However, it is also pertinent to note
that in that case, the petitioner had a bank account and proof thereof, which
he had tendered before the Returning Officer. This is a peculiar fact
regarding which there is no sufficient proof in the matter in hand. Though
the petitioner is alleging that she had opened a new account and was even
ready with the passbook to be tendered before the Returning Officer, there is
no proof about it. She also alleges that the Returning Officer refused to
accept it. It is a disputed fact which cannot be gone into in this matter. It is
under these peculiar circumstances, I find no sufficient ground to cause any
interference in the impugned order.
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9. Needless to state that the petitioner would be at liberty to avail
of the appropriate remedy as is available to her in law at the appropriate
stage.
10. In the result, the Writ Petition is dismissed. The Rule is
discharged.
[MANGESH S. PATIL]
JUDGE
npj/WPST101-2021
