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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

1017 WRIT PETITION NO. 101 OF 2021

MONIKA RAJENDRA MHASKE

VERSUS

THE STATE ELECTION COMMISSION AND OTHERS

...

Advocate for Petitioner: Mr. Salunke V. D.

Standing Counsel for Respondents No. 1 & 2:

Mr. A. B. Kadethankar

Advocate for Respondents No.3 & 4: Mr. V. D.

Sapkal, Senior Advocate h/f. Mr. S. E. Shekade

...

1018 WRIT PETITION NO. 102 OF 2021

REKHA DEEPAK JATAL

VERSUS

THE STATE ELECTION COMMISSION AND OTHERS

...

Advocate for Petitioner: Mr. Salunke V. D.

Standing Counsel for Respondents No. 1 & 2:

Mr. A. B. Kadethankar

Advocate for Respondents No.3 & 4: Mr. V. D.

Sapkal, Senior Advocate h/f. Mr. S. E. Shekade

...

CORAM:S. V. GANGAPURWALA &

SHRIKANT D. KULKARNI, JJ.

DATE: 14^th JANUARY, 2021

PER COURT:

1.

To avoid rigmarole both these writ petitions

are decided together and the facts are taken from

Writ Petition No. 101 of 2021.

2 wp 101&102.2021

2.

The petitioner had filled in the nomination

form for the election of the post of Member of

Grampanchayat from Ward No. 3B and Ward No. 3C.

The nomination paper of the petitioner for both

viz. Ward No. 3B and Ward No. 3C were accepted.

The name of the petitioner appeared in the list of

validly nominated candidates. On the date meant

for withdrawal of the nomination paper the

petitioner filed an application seeking withdrawal

of nomination from Ward No. 3C. It is the

contention of the petitioner that without issuing

notice to the petitioner and without affording any

opportunity to the petitioner the Returning

Officer arbitrarily passed an order directing that

the candidature of the petitioner stands withdrawn

from Ward No. 3B and Ward No. 3C. The said order

of the Returning Officer is assailed in the

present writ petition.

3.

The Division Bench at the Principal Seat at

Bombay had referred following issues to the Full

Bench-

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“(i)Does allowing a challenge in a writ

petition to rejection of nomination form to

contest an election and granting the relief

claimed by setting aside such order of

rejection, amount to intervention,

obstruction or protraction of the election or

is it a step to facilitate the process of

completion of election?

(ii)Whether rejection of nomination form

would attract the provisions of Article 243-

O(b) of the Constitution of India?

(iii)

Are the views expressed by the

Division Benches of this Court in the cases

of (i) Sudhakar s/o. Vitthal Misal vs. State

of Maharashtra and Ors., reported in 2007 (6)

All MR 773, and (ii) Smt. Mayaraju Ghavghave

vs. Returning Officer for Gram Panchayat,

Dhamangaon and Anr., reported in 2004(4) ALL

MR 258, correct, or does the decision in the

case of Vinod Pandurang Bharasakade vs.

Returning Officer, Akot and Anr., reported in

2003(4) Mh.L.J. 359, represents the correct

view in law?”

4.

The Full Bench of this Court under its

judgment and order dated January 13, 2021 passed

in Writ Petition (St.) No. 26 of 2021 with

connected writ petition, answered the said

Reference and held as under-

“(i)

Allowing a challenge in a writ

petition to rejection of nomination form to

contest an election and granting the relief

claimed by setting aside such order of

rejection is definitely not a step to sub-

serve the progress of election and/or

facilitate its completion in the sense

enunciated in Mohinder Singh Gill (supra) and

explained in Ashok Kumar (supra) though it

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may not always amount to intervention,

obstruction or protraction of the election;

(ii)

Article 243-O(b) of the Constitution

of India is a bar for entertaining a writ

petition under Article 226 of the

Constitution against an order passed by the

Returning Officer rejecting nomination paper

and such provision would clearly be attracted

whenever a writ petition is present