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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
S. B. SHUKRE, J.
Poonam w/o Rajesh Pawar - Petitioner
Versus
The Returning Officer for the elections of 2017 of Zilla Parishad, Tq. Naigaon, District Nanded - Respondent
W.P. No.1974-1975 of 2017
Decided on : 10-02-2017
Requirement of Rule 14(5) of 1962 Rules to the effect that, at the time of filing of the nomination paper a candidate must submit a copy of the voters list of a different constituency applies only when he chooses to be nominated from a constituency where his name does not find place in the voters list and finds place in the voters list for another constituency and that if his name is already there in the voters list of the constituency from which he wishes to be elected, such requirement would not be applicable and it would be enough for him to submit along with nomination paper a copy of the voters list of the constituency showing inclusion of his name therein, in respect of which he has filed his nomination paper. AIR 2007 SC 2924-Relied on.
Maharashtra Zilla Parishad District Services (Discipline and Appeal) Rules, 1964-Rule 14(5)-Constitution of India, Articles 226 and 227-Election to Zilla Parishad & Panchayat.-Since name of a candidate is already in voters list of constituency from which he willing to contest election hence compliance of Rule 14(5) of Rules is not necessary.
Whenever exceptional circumstances exist, where the need is to prevent a mandatory provision of law, being rendered nugatory and otiose, where the decision challenged belongs to a category which, if corrected, would amount to progression of the election and would be in furtherance of an election, and where no disputed questions of fact are involved, as determined from the facts and circumstances of each case, writ jurisdiction of the High Court under Article 226 of the Constitution of India could be invoked.
In the peculiar facts and circumstances of this case, patent illegality can be corrected which is committed by the District Judge, which is so manifestly clear from the impugned judgment and order, at this stage itself, rather than waiting for the election process to be completed, lest the mandatory provisions of Rule 14(5) would be rendered nugatory and otiose. This patent illegality seen now is also of the nature that if it is removed, such correction would not amount to interference in the process and it would only facilitate the process of election.
In the result, the petitions are maintainable and the impugned judgments and orders being patently illegal, warranting interference in the peculiar facts and circumstances of this case, need to be quashed and set aside by allowing both the writ petitions. The petitioner is allowed to contest the election.
1. These writ petitions are being disposed of by a common judgment as both the petitions are having identical questions, which pertain to the compliance with the mandatory provisions of the Maharashtra Zilla Parishads and Panchayat Samitis Rules, 1962 (for short Z.P. & P.S. Rules, 1962).
2. As per the election programme, today is the date fixed for allotment of election symbols. The petitioner in these petitions is the same candidate (hereinafter referred to as common petitioner), interested to contest the elections to Zilla Parishad, Nanded. Her nomination paper was accepted by the Returning Officer, but the respondent Nos.3 and 7 in Writ Petition No.1974/2017 and respondent No.3 in Writ Petition No.1975/2017 objected to the same by filing an election appeal before the District Judge. The respondent Nos.3 and 7 in Writ Petition No.1974/2017 are also the candidates who are interested to contest the elections. The respondent No.3 in Writ Petition No.1975/2017 is, however, an eligible voter in these elections. The learned District Judge, after hearing the rival parties, found that, acceptance of nomination paper of the petitioner was incorrect and against the provisions of Sections 15, 16, 18, 22 and 23 of the Representation of Peoples Act, 1951 and also relevant rules. Therefore, by the order passed on 8/2/2017, the learned District Judge allowed both the Election Appeals No.1 and 2 of 2017 and rejected the nomination paper of the petitioner. Being aggrieved by the same, the petitioner is now before this Court by invoking its jurisdiction under Articles 226 and 227 of the Constitution of India.
3. The nomination form was submitted by the common petitioner on the ticket of Bhartiya Janata Party for being elected as a Councillor to Nanded Zilla Parishad from Manjram Zilla Parishad Block. In this block, village Alu-wadgaon from Naigaon Legislative Assembly Constituency of Nanded district and of which the common petitioner is a resident, falls. Before the Returning Officer, respondent No.3 in Writ Petition No.1974/2017 had taken an objection to acceptance of the nomination paper of the common petitioner and when it was turned down, the objection was carried in appeal before the learned District Judge, not only by respondent No.3 in Writ Petition No.1974/2017 but also by respondent No.3 in other Writ Petition No.1975/2017. For this purpose, two separate appeals, being Election Appeals No.1 and 2 of 2017 were preferred. At the appellate stage, these objectors succeeded, giving rise to these petitions. At this level, respondent Nos.7 and 11 in Writ Petition No.1974/2017 have joined the chorus of objections.
4. These petitions were listed on board for admission yesterday and immediately notice was issued for final disposal, considering the fact that today is the date for allotment of election symbols. While the officers of the Election Commission (respondent No.3) and respondent No.11 in Writ Petition No.1974/2017 as well as respondent No.3 in Writ Petition No.1975/2017 appeared through their respective counsel, the remaining respondents in both the petitions did not appear. By the order passed yesterday i.e. 9/2/2017, liberty was granted to the petitioner to effect private service upon the respondents and the Returning Officer was also requested to make an endeavour to notify all the respondents by displaying a notice on its notice board. The petitioner has filed affidavits in both the petitions, indicating that all the respondents have been notified through paper publication and Shri Shelke, learned counsel for the officers of the Election Commission has produced before the Court a copy of the notice, which is taken on record and marked “X” for identification, which was displayed on its notice board for all the respondents to know about taking of this Writ Petition today for final disposal. In any case, the other respondents, barring the respondents who appeared through their counsel, were not the objectors who had filed appea
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