Bombay High Court
Mahesh Waghji Wankhede vs State Election Commission, ... on 8 December, 2022
Bench: V. G. Joshi
Order 0812wp7762.22
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 7762/2022 .
Samadhan Natthu Mendke -VERSUS- State Election Commission and ors.
WRIT PETITION NO. 7763/2022 .
Sushila Hiraman Kamble -VERSUS- State Election Commission and ors.
WRIT PETITION NO. 7764/2022 .
Mahesh Waghji Wankhede -VERSUS- State Election Commission and ors.
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
Shri R.L.Kadu, Advocate for Petitioners.
Ms.T. Khan, A.G.P. for Respondent Nos.2 and 3.
CORAM : VINAY JOSHI, J.
DATE : DECEMBER 08, 2022.
Heard learned Counsel present for the parties.
2. These petitions pertain to challenge of acceptance of
nomination forms by the Returning Officer for Gram Panchayat
elections.
3. At the outset maintainability of these writ petitions
has been seriously challenged by respondent State in the light
of recent decision of Full Bench in case of Karmaveer Tulshiram
Autade and others .vrs. State Election Commission and others -
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2021 [2] Mh.L.J. 349. It is contended that in view of specific
question framed and answered by the Full Bench, these
petitions are not maintainable.
4. In all petitions, respective petitioners have
challenged the order of Returning officer dated 05.12.2022,
thereby accepting the nomination form of respondent no.5 (in
all petitions), despite objection raised by them. Thus, the issue
involved in all petitions is common about acceptance of
nomination forms pertaining to Gram Panchayat Elections.
5. Respondents have declared the election program for
the elections to various Gram Panchayats, including the
concerned Gram Panchayats. As per the election program on
18.11.2022, notice of election program was published.
Nomination forms were to be filled by the candidates between
28.11.2022 to 02.12.2022. Scrutiny of the nomination forms
was to take place on 05.12.2022 and withdrawal of candidature
was till 07.12.2022. Final list of candidates and allotment of
symbols was to be done on 07.12.2022, and polling date is
scheduled on 18.12.2022. Counting of votes is fixed on
20.12.2022, followed by result.
6. In all petitions, petitioners have raised objections
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contending that the respective respondent no.5 have
encroached upon government land and thus, they are liable for
disqualification in terms of Section 14[1][j-3] of the
Maharashtra Village Panchayat Act, 1958. According to
petitioners, the objections have not been considered, but, the
Returning Officer has illegally accepted the nominations of
respective respondent no.5 in each petition.
7. In above referred Full Bench decision of this Court in
case of Karmaveer Autade, a specific question regarding
maintainability of the writ petition seeking to challenge an
order of rejection of nomination paper to contest gram
panchayat elections, was framed and answered. The Full Bench
has categorically held that writ petition under Article 226 of the
Constitution of India against the orders passed by the Returning
Officer, rejecting or accepting nomination paper is not
maintainable in the light of settled position of law right from
the judgment of Supreme Court in case of N.P.
Ponnuswami .vrs. Returning Officer, Namakhal and others -
AIR 1952 SC 64. The Full Bench has analyzed the position of
law as discussed in earlier judgment and reiterated that Writ
Petition challenging the order of Returning Officer is not
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maintainable in view of specific bar created under Article 243-
O[b] of the Constitution of India and Section 15A of the
Maharashtra Village Panchayat Act.
8. Besides that, this Court in a decision in case of
Gazala Bi Saddam Shah .vrs. The Collector, Buldhana and
others - Writ Petition No.85/2021 dated 08.07.2021, has once
again taken stock of all earlier decisions in the field including
the above referred Full Bench decision and reiterated that
Petition is not maintainable. Petitioners are unable to convince
as to how these decisions would not apply to their cases.
9. The learned Counsel appearing for petitioners has
relied on a decision of Janabai .vrs. Additional Commissioner
and others - AIR 2018 SC 5069 to contend that even if the
encroachment upon the government land is made by family
member and the candidate shares the encroached property, still
he/she is liable for disqualification. There can be no dispute
about the said legal proposition. However, the issue involved is
about maintainability of these petition after declaration of the
election program.
10. Since the issue of maintainability is squarely covered
by the above referred decision of Full Bench, I have no
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hesitation to hold that the present petitions are not
maintainable and accordingly they are dismissed. However, it is
made clear that all contentions raised by the respective
petitioners, are kept open to be canvassed in appropriate
proceedings.
JUDGE
JITENDRA
BHARAT
GOHANE
Digitally signed by
JITENDRA BHARAT
GOHANE
Date: 2022.12.12
19:21:12 +0530
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