( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6389 OF 2010 Anita w/o Sattarsing Girase PETITIONER VERSUS The State of Maharashtra and others RESPONDENTS .... Mr. V.P. Latange, advocate for the petitioner. Mr. D.R. Korade, AGP for the respondent/State. Mr. M.M. Nerlikar, advocate holding for Mr. S.T. Shelke, advocate for the respondent No. 2. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 19th July, 2010] PER COURT : 1. Heard learned counsel. 2. The petitioner’s nomination paper came to be rejected. She desired to file nomination as a candidate for the Village Panchayat Election. The petitioner was held ineligible on account of alleged encroachment on public property. The counsel would submit that the Gram Sevak issued certificate that due to oversight, such kind of entry was taken in the record. The allegations about the encroachment might have been withdrawn by the Gram Sevak, but it does not mean that the rejection is totally without any record. The ( 2 ) enquiry to be conducted by the Returning Officer is of summary nature and that, such a disputed question of fact cannot be determined by this Court. 3. A Division Bench of this Court in “Vinod Pandurang Bharsakade vs. Returning Officer, Akot and another” 2003 (4) Mh.L.J. 359, held that improper rejection or acceptance of nomination paper can be made the subject matter of challenge in the election petition under section 15 of the Bombay Village Panchayats Act, 1959. It has been held that writ petition under Article 226 of the Constitution of India is not maintainable in such a matter. As against this, my attention is invited to certain observations of another Division Bench of this Court in “Mayaraju Ghavghave vs. Returning Officer and another” 2004 (5) Bom.C.R. 146 and “Vasant s/o Vyankoji Shinde vs. The State of Maharashtra and others” (Writ Petition Nos. 6782/2008, etc.). It may be mentioned that in writ petition No. 6782/2008 and others, the above referred judgement of the Division Bench was not taken into account. It appears, no doubt, that Division Bench in “Mayaraju Ghavghave vs. Returning Officer and another” (supra) did consider the judgement of another Division Bench in “Vinod Pandurang Bharsakade vs. Returning Officer, Akot and another” (supra). ( 3 ) However, the subsequent Division Bench has taken a different view on the premise that the view taken by the earlier Division Bench is founded on interpretation of Article 243-O (b) of the Constitution. It is well settled that if there appears conflict of view taken by two (2) Division Benches of the same High Court, the view which appears to be proper may be followed in a subsequent case. It is not necessary to follow only recent view. In my opinion, when the Division Bench in “Vinod Pandurang Bharsakade vs. Returning Officer, Akot and another” elaborately analyzed the judgement of the Supreme Court in “K.K. Shrivastava vs. Bhupendra Kumar Jain and others” (AIR 1977 SC 1703) and other judgements, relevant to the election law, judicial discipline requires that this Court should follow the same view. I find it difficult to overcome the difficulty. One cannot be oblivious of the fact that rejection of the nomination paper by the Returning Officer cannot be termed as an arbitrary act when certain reasons are ascribed. Whether the petitioner had committed encroachment on public property or not is a disputed question of fact. This Court cannot determine this issue which requires consideration of relevant evidence. In trial of an election petition, such issue can be thrashed out. ( 4 ) 4. Considering the limited scope of Article 226 and Article 227 of the Constitution, I am of the opinion that the present petition is not maintainable and the only remedy available to the petitioner is to file the election petition after the elections are over. Petition is accordingly dismissed. [V.R. KINGAONKAR] JUDGE NPJ/wp6389-2010