Bombay High Court
Siminta Shripati Mahamuni And ... vs The State Of Maharashtra And ... on 4 January, 2021
Bench: Mangesh S. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION STAMP NO. 84 OF 2021
WITH
CIVIL APPLICATION STAMP NO. 120 OF 2021
SIMINTA SHRIPATI MAHAMUNI AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
Advocate for Petitioners : Mr. S.S. Thombre.
APP for Respondent Nos. 1, 3 & 4 : Mr. S.B. Pulkundwar.
Advocate for Respondent Nos. 2 & 5 : Mr. A.B. Kadethankar.
Advocate for Caveator : Mr. Mukul Kulkarni.
CORAM : MANGESH S. PATIL, J.
DATED : 04.01.2021
Judgment :
Heard.
2. Leave granted to withdraw the Writ Petition to the extent of
petitioner Nos. 10 and 11.
3. Rule. The Rule is made returnable forthwith. With the
consent of the parties, the matter is heard finally at the stage of
admission.
4. The petitioners who had filed nomination from different
wards of village Balsur, Taluka Omarga, District Osmanabad, are
before this Court being aggrieved and dissatisfied by the decision of
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the Returning Officer rejecting the nomination forms primarily on
the ground that the declaration in Annexure II did not bear their
signatures either below the declaration or under the verification
statement which was also not duly sworn before the Notary.
5. Learned Advocate Mr. Thombre would submit that going by
the provisions of Rule 11 (2-A) of the Maharashtra Village
Panchayat Election Rules, the defect being minor, the returning
officer should have allowed the petitioners to cure it. He would
submit that the petitioners were present before the Returning
Officer and even tried to tender the documents to cure the defect.
But he deliberately received those late. The decision is politically
motivated. The whole purpose of the election would be frustrated.
The petitioners' nominations are rejected in this fashion enblock.
He would submit that a Single Judge of this Court in the case of
Chaturabai Manohar Wadje and another Versus Returning Officer
Masalga, Tq. Kandhar and another, by the order dated 02.01.2021,
has allowed a similar defect to be cured.
6. Learned Advocate Mr. Thombre also on instructions submits
that in fact the Returning Officer was not impartial. He simply left
the place even though the petitioners requested him to allow to
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cure the defect. Failure to do so has resulted in gross injustice and
the petition be allowed.
7. Learned Advocate Mr. Thombre further submits that going by
the procedure, the candidates were supposed to file the nomination
forms online and it is thereafter they were supposed to file a hard
copy of the nomination forms and the annexures. The petitioners
had already submitted their nomination forms online. All
affidavits, undertakings and declarations were filed with the
nomination except the duly signed Annexure II and the candidature
ought not to have been refused simply for want of signature.
8. Learned Advocate Mr. Kadethankar for the State Election
Commission and the learned Advocate Mr. Mukul Kulkarni for the
intervenor would submit that the defect was not curable and it was
substantial. Annexure II is in the form of a declaration which is
supposed to be annexed with the verification made on oath. It is
not a technical compliance or a mere formality to be complied
with. Learned Advcoate Mr. Kadethankar submits that the genesis
of the importance attached to such declaration can be found in the
decision of the Supreme Court in the case of Union of India Versus
Association for Democratic Reforms and another, (2002) 5 SCC
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294, which has been followed by a co-ordinate Bench of this Court
in the case of Ansari Halima Bano Mohammad Shaban Veersus The
State Election Commission and Another, in Writ Petition No.
12916/2018 dated 26.11.2018 (Principal Seat). He would point
out that referring to the decision of the Supreme Court in the case
of Union of India Versus Association for Democratic Reforms and
another (supra), this Court has specifically held that such defect of
want of signature cannot be trivialized as mere formality and is a
substantial defect.
9. Suffice for the purpose to observe at the inception that as far
as the factual aspects are concerned this Court would be loath in
entering into that arena.
10. As regards the ground for rejection of the nomination forms
are concerned, except in case of petitioner No. 12 wherein one
more additional ground for non submission of an affidavit in
respect of not having worked as a contractor for the Gram
Panchayat, the nominations in respect of all the petitioners (except
petitioner Nos. 10 and 11) have been rejected for want of signature
and on the Annexure II and the verification below it. The
importance of such a declaration is not an issue which is res
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integra. One can simply refer to the decision of the Supreme Court
in the case of Union of India Versus Association for Democratic
Reforms and another (supra), which specifically lays down the
importance of putting such signature on the nomination forms and
the declaration. Following the principle laid down by the Supreme
Court, this Court in the case of Ansari Halima Bano Mohammad
Shaban (supra), has also concluded that absence of such signature
is a substantial defect which cannot be cured under the garb of it
being a merely formality and a curable defect. It is in the nature of
declaration on oath. Considering the importance of such a
declaration in Annexure II, no error can be found in the impugned
order rejecting the nominations for this reason alone.
11. The Writ Petition is dismissed to the extent of petitioner Nos.
1 to 9 and 12 to 16.
12. Civil Application Stamp No. 120 of 2021 for intervention is
allowed.
( MANGESH S. PATIL, J. )
S.P.C.
