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2019 Supreme(Bom) 448
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH
P.R. Bora, J.
Sushila Sukram Naik - Appellant
Vs.
State Election Commission Maharashtra - Respondent
Writ Petition No. 3595 of 2019
Decided On : 14-03-2019
Vijay B. Patil, Adv., S.K. Tambe, Adv., S.T. Shelke, Adv., A.S. Sawant, Adv.
Headnote:
Constitution of India, 1950 - Article 226 - Maharashtra Village Panchayats Act, 1959 - Section 14 - Post of Member of Gram Panchayat - Election of Member of Village Panchayat - Petitioner has filed present petition being aggrieved by rejection of her nomination for post of member of gram panchayat elections of which are scheduled - Petitioner claims to be belonging to bhil caste which is a scheduled tribe - She has submitted her nomination for contesting election of member of village panchayat from ward of said gram panchayat in category b which is reserved for scheduled tribe women - Nomination of petitioner was objected to by respondent on various grounds - One of grounds was that petitioner does not have a toilet constructed in her house - Upholding said objection returning officer has rejected nomination of petitioner - Returning Officer has noted that petitioner has not complied with requirements - In impugned order it is observed that along with certificate under signature of gram sevak petitioner has not annexed either resolution of gram sabha or certificate of chief executive officer or an officer designated by chief executive officer or herself certificate certifying that she regularly uses a public toilet - Held, According to me filing of self certificate merely remains a formality and not filing of such certificate cannot be held to be a defect of a substantial character so as to reject nomination of petitioner on that ground - Object behind bringing in statute was to deprecate defecation in open - Villagers were accordingly encouraged by introducing schemes for construction of toilets at their houses and public toilets were also constructed in villages - It is matter of common knowledge that being encouraged by schemes of government and after realizing true spirit in making such provisions villages one after another were declared to be villages free from open defecation - Village is one of such villages which has been declared to be a village free from open defecation - Certificates in that regard are placed on record by petitioner - In circumstances unless any allegation against petitioner is made that she is still defecating in open it has to be presumed that either she has a toilet in her house and she is using it or that she regularly uses a public toilet - I have carefully gone through contents of objection raised by respondent to nomination of petitioner - In said objection it is no where contention of objector that present petitioner is still resorting to practice of defecating in open - Objection raised only relates to fact that petitioner is not having a toilet in her house - Petition Is Allowed.
P.R. Bora, J.
Rule.
2. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for the parties.
3. The petitioner has filed the present petition being aggrieved by rejection of her nomination for the post of Member of Gram Panchayat Daul, Tq.Shindkheda, Dist.Dhule, the elections of which are scheduled on 24.03.2019. The petitioner claims to be belonging to 'Bhil' caste, which is a Scheduled Tribe. She has submitted her nomination for contesting the election of Member of village Panchayat, Daul from Ward No.1 of the said Gram Panchayat in category 'B', which is reserved for Scheduled Tribe Women.
4. The nomination of the petitioner was objected-to by respondent No.4 on various grounds. One of the grounds was that the petitioner does not have a toilet constructed in her house. Upholding the said objection, the Returning Officer has rejected the nomination of the petitioner. The Returning Officer has noted that the petitioner has not complied with the requirements under Section 14(1) (j-5) of the Maharashtra Village Panchayats Act, 1959 (hereinafter referred to as the Act of 1959). In the impugned order, it is observed that alongwith the certificate under the signature of Gram Sevak, the petitioner has not annexed either resolution of the Gram Sabha or the certificate of the Chief Executive Officer or an Officer designated by the Chief Executive Officer, or her self certificate, certifying that she regularly uses a public toilet. Aggrieved by the rejection of her nomination on the aforesaid ground, the petitioner has approached this Court by invoking the jurisdiction of this Court under Article 226 of the Constitution of India.
5. Shri V.B. Patil, learned Counsel appearing for the petitioner submitted that the Returning Officer has rejected the nomination of the petitioner on erroneous grounds. The learned Counsel pointed out that the petitioner has submitted the certificate under the signature of the Gram Sevak certifying that the petitioner uses a public toilet. The learned Counsel submitted that, the Returning Officer, in the impugned order itself, has mentioned that the petitioner is using a public toilet. The learned counsel submitted that the nomination appears to have been rejected by the Returning Officer only on the ground that the petitioner has not appended alongwith the certificate issued by the Gram Sevak, any of the document envisaged under Section 14(1) (j-5) of the Act of 1959. The learned Counsel submitted that the defect so pointed out is not of substantial character. The learned Counsel submitted that the documents on record support the contention of the petitioner that she uses a public toilet. In the circumstances, the learned Counsel prayed for setting aside the impugned order and the consequent direction to the Returning Officer to accept the nomination of the petitioner.
To support his contention, the learned Counsel has relied upon the following Judgments:-
(a) Anant Janardhan Patil Vs. State of Maharashtra & Others, (2002) 2 MhLJ 238.
(b) Judgment passed by this Court on 20th February 2015, in Writ Petition No.1778 of 2015 and connected matter.
(c) Judgment passed by this Court on 26th November 2018, in Writ Petition No.12877 of 2018.
6. Shri A.S. Sawant, learned Counsel appearing for respondent No.4 resisted the submissions advanced on behalf of the petitioner. The learned Counsel raised a preliminary objection that the rejection of the nomination cannot be the subject matter in the Writ Petition under Article 226 of the Constitution of India. The learned Counsel placing his reliance on the Judgment of Division Bench of this Court in the case of Vinod Pandurang Bharsakade Vs. Returning Officer, Akot and another, (2003) 4 MhLJ 359 submitted that the petition is liable to be rejected being not maintainable and the only remedy for the petitioner would be to file an election petition. The learned Counsel pointed out that rejection of the nomination for wrong reasons can be a go
