( 1 ) wp7885.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7885 OF 2010 WITH WRIT PETITION NO. 7891 OF 2010 WITH WRIT PETITION NO. 7900 OF 2010 WITH WRIT PETITION NO. 7906 OF 2010 * * * * * * WRIT PETITION NO. 7885 OF 2010 Nanasaheb s/o. Venkatrao Tele .. Petitioner Age. 37 years, Occ. Agriculture, R/o. Dabha, Tal. Kallamb, Dist. Osmanabad. Versus 1. Saheb s/o. Rangnath Londhe .. Respondents Age. 42 years, Occ. Agriculture, R/o. Dabha, Tq. Kallamb, Dist. Osmanabad. 2. The Returning Officer Appointed for the holding election of Village Panchayat Dhaba, Tq. Kallamb, Dist. Osmanabad. 3. The State Election Commission Maharashtra, through Commissioner. WITH WRIT PETITION NO. 7891 OF 2010 ( 2 ) wp7885.10 Nanasaheb s/o. Venkatrao Tele .. Petitioner Age. 37 years, Occ. Agriculture, R/o. Dabha, Tal. Kallamb, Dist. Osmanabad. Versus 1. Laxman s/o. Nivruti Waghmare .. Respondents Age. 40 years, Occ. Agriculture, R/o. Dabha, Tq. Kallamb, Dist. Osmanabad. 2. The Returning Officer Appointed for the holding election of Village Panchayat Dhaba, Tq. Kallamb, Dist. Osmanabad. 3. The State Election Commission Maharashtra, through Commissioner. WITH WRIT PETITION NO. 7900 OF 2010 Nanasaheb s/o. Venkatrao Tele .. Petitioner Age. 37 years, Occ. Agriculture, R/o. Dabha, Tal. Kallamb, Dist. Osmanabad. Versus 1. Parvati w/o. Mahadeo Shevte .. Respondents Age. 60 years, Occ. Household, R/o. Dabha, Tq. Kallamb, Dist. Osmanabad. 2. The Returning Officer Appointed for the holding election of Village Panchayat Dhaba, Tq. Kallamb, Dist. Osmanabad. ( 3 ) wp7885.10 3. The State Election Commission Maharashtra, through Commissioner. WITH WRIT PETITION NO. 7906 OF 2010 Nanasaheb s/o. Venkatrao Tele .. Petitioner Age. 37 years, Occ. Agriculture, R/o. Dabha, Tal. Kallamb, Dist. Osmanabad. Versus 1. Sheela w/o. Namdeo Gaikwad .. Respondents Age. 40 years, Occ. Household, R/o. Dabha, Tq. Kallamb, Dist. Osmanabad. 2. The Returning Officer Appointed for the holding election of Village Panchayat Dhaba, Tq. Kallamb, Dist. Osmanabad. 3. The State Election Commission Maharashtra, through Commissioner. Mr. V.D. Salunke, Advocate for the petitioner. Mr. N.P. Patil-Jamalpurkar, Advocate for respondent No.1 in all the petitions. Mr. S.T. Shelke, Advocate for respondent Nos. 2 & 3. CORAM : V.R. KINGAONKAR,J. DATED : 24.01.2011 ( 4 ) wp7885.10 O R A L J U D G M E N T :- 1. The group of above four petitions is being disposed of together at the stage of admission. 2. Rule. Rule made returnable forthwith and heard finally. 3. The petitioner in all these petitions is common, though respondent No.1 in each of them is different. 4. The common question involved in these petitions is - Whether respondent No.2 – Returning Officer could have validly permitted rectification of the defect in the undertaking (Hamipatra) by allowing respondent No.1 to sign the same on subsequent date i.e. the date of scrutiny and the invalidity of such nomination form filed by respondent No.1 could be cured? 5. The Village Panchayat elections of village Dabha (Tal. Kallamb) were declared for the year 2010. By ( 5 ) wp7885.10 notification dated 30th July, 2010, the election programme was notified. As per the election programme, the nomination papers were to be submitted by the prospective candidates between 16th to 21st August, 2010. Respondent No.2 Mr. S.S. Sulakhe, Jr. Engineer, attached to Panchayat Samiti, Kallamb, was appointed as Returning Officer to hold such elections of the Village Panchayat. The date of scrutiny of the nomination papers was scheduled on 23rd August, 2010. The date of withdrawal of the nominations was on 25th August, 2010. The candidates were supposed to file their nomination forms along with necessary accompaniments. Respondent No.2 was required to scrutinize their nomination forms in order to accept or reject the same. Respondent No.1 in each of the petition had filed a nomination form from the respective ward. The petitioner also had filed his nomination form from the respective ward of Village Panchayat. There is no dispute about the fact that one seat from the said wards was reserved for “Other Backward Class (OBC)” & “Scheduled Caste (SC) respectively. There is also no dispute about the fact that respondent No.1 in each of the petition had not filed the required undertaking (Hamipatra) signed and duly required ( 6 ) wp7885.10 as per the rules. Respondent no.2 – Returning Officer allowed respondent No.1 in each of the petition to rectify mistake by signing the form of the undertaking i.e. Hamipatra. Respondent No.2 accepted nomination forms only by stating that it was accepted. The petitioner had objected conduct of respondent No.2. It was contention of the petitioner that nomination forms of respondent No.1 in each of the petition ought not to have been accepted because the same were defective. The petitioner was aggrieved due to acceptance of the nomination forms and hence challenged the acceptance of the nomination form by filing the present petitions. 6. It is pertinent to mention here that the petitions could not be heard before the voters have casted the votes. The learned Single Judge of this Court by order dated 03.09.2010, however, directed that the counting of votes may be done but final result of the election shall not be declared. Needless to say, final outcome of the election is forestalled by the interim order of this Court. ( 7 ) wp7885.10 7. Heard learned Counsel for the parties. Mr. V.D. Salunke would submit that the nomination forms of respondent No.1 in each case ought to have been rejected, because filing of the undertaking (Hamipatra) is mandatory and is part and parcel of the nomination form. He would further submit that respondent No.2 had no authority or competency to promote rectification of the error committed by respondent No.1 in each of the matter. It is contended that the defect in filing of the nomination form is of substantial nature and therefore the form of respondent No.1 could not have been accepted. My attention is invited by Mr. V.D. Salunke to the amended position of Section 10-1A of the Bombay Village Panchayat Act, 1958. Per contra, Mr. N.P. Patil-Jamalpurkar submits that the election can be challenged only by filing separate election petition and therefore present writ petitions are not maintainable. He seeks to rely on certain observations in “Bhosale Deepak Manikrao & Ors. V/s. The State of Maharashtra & Ors.” (1998(2) Bom.C.R.352). He would further submit that the defect was not of substantial character and could be rectified before the finalization of the scrutiny. Mr. Shelke, however, contended that the ( 8 ) wp7885.10 Returning Officer finally allowed the removal of the defect. He submits, however, that the Returning Officer had no other intention though mistakenly the nomination forms of respondent No.1 in each case were accepted. 8. Before I proceed to consider rival submissions, it would be proper to consider the legal position as regards Section 10-A prior to and subsequent to the amendment. Section 10-A before the amendment read as follows :- Section 10-1A (Unamended) :- “10-1A. Person contesting election for reserved seat to submit Caste Certificate and Validity Certificate.- Every person desirous of contesting election to a seat reserved for Scheduled Castes, Scheduled Tribes or, as the case may be, Backward Class of Citizens, shall be required to submit, alongwith the nomination paper, Caste Certificate issued by the Competent Authority and the Validity Certificate issued by the Scrutiny Committee in accordance with the provisions of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 :- Provided that, a person who has applied to the Scrutiny Committee for verification of his Caste Certificate before the date of filing of the nomination paper but who has not received the ( 9 ) wp7885.10 Validity Certificate on the date of filing of the nomination paper shall submit, along with the nomination paper - (i) a true copy of the application preferred by him to the scrutiny committee for issuance of the Validity Certificate or any other proof for having made such application to the Scrutiny Committee; and (ii) an undertaking that he shall submit, within a period of three months from the date of his election, the Validity Certificate issued by the Scrutiny Committee : Provided further that, if the person fails to produce the Validity Certificate within a period of three months from the date of his election, his election shall be deemed to have been terminated retrospectively and he shall be disqualified for being a member.” 9. It appears that Section 10-1A was amended vide the Bombay Village Panchayats (Amendment) Act, 2010. The amendment came into effect on 9th June, 2010. The amended provision is as follows :- “provided that, for the General or bye-elections for which the last date of filing of nomination falls on or before the 31st December, 2010, in accordance with the election programme declared by the State Election Commission, a person who has applied to the Scrutiny Committee for verification of his caste certificate before the date of filing of the nomination paper but who has not received ( 10 ) wp7885.10 the Validity Certificate on the date of filing of the nomination paper shall submit, along with the nomination paper, - (i) a true copy of the application preferred by him to the Scrutiny Committee for issuance of the Validity Certificate or any other proof of having made such application to the Scrutiny Committee; and (ii) an undertaking that he shall submit, within a period of four months from the date of his election, the Validity Certificate issued by the Scrutiny Committee : Provided further that, if the person fails to produce the Validity Certificate within a period of four months from the date of his election, his election shall be deemed to have been terminated retrospectively and he shall be disqualified for being a member.” 10. Perusal of Section 10-1A would show that the candidate desirous of contesting the election to a reserved seat was required to submit caste certificate issued by the competent authority and the validity certificate issued by the Scrutiny Committee. The submission of both such certificates was mandated under Section 10-1A. It appears, however, that the subsequent amendment was carried out in order to facilitate time for submission of the Caste Validity Certificate issued by the Scrutiny Committee on condition ( 11 ) wp7885.10 that an undertaking would be submitted by the candidate to the effect that within a period of four months from the date of his election, the validity certificate issued by the Scrutiny Committee would be produced by him. Thus, such candidate was required to file his nomination paper along with true copy of application preferred by him to the Scrutiny Committee for issuance of the validity certificate or any other proof of having made such application and also an undertaking (Hamipatra) to the effect that within the given statutory period the validity certificate will be produced by him. Needless to say, the amendment to Section 10-1A is provided as concession to the candidates in view of the fact that the candidate might have applied for obtaining caste validity certificate, but the process might not have been completed. It is not that the undertaking was only a formality to be complied with. The undertaking of such a candidate along with copy of application filed by him before the caste scrutiny committee ought to be treated as part and parcel of the nomination paper. If such undertaking is not filed by the candidate along with nomination paper, it goes without saying that the nomination paper suffers from ( 12 ) wp7885.10 substantial defect. 11. In “Rattan Anmol Singh V/s. Atma Ram” [1954 (0) AIR (SC) 510], the Apex Court held that the nomination papers which were not properly subscribed could not be accepted as valid one and the defect cannot be cured at the stage of scrutiny. Respondent No.2 has clearly admitted mistake committed by him while allowing rectification of the nomination papers by permitted respondent No.1 in each of the petition to sign the undertaking (Hamipatra) at the stage of scrutiny of the nomination papers. The Single Bench of this Court in Writ Petition Nos. 7782 of 2010, 7783 of 2010, 7787 of 2010, 7790 of 2010 and 7791 of 2010 held that the lapses on the part of the candidate in presenting the undertaking along with nomination papers cannot be said to be a technical lacuna. In “Maruti Dadu Dadakhe & Anr. V/s. Baburao Jyoti Kamble & Ors., [1986 (0) BCI 67]”, this Court held that if the candidate is rash enough or negligent to hand over nomination paper without thumb mark then it is not duty of Returning Officer to point out the defect. The Returning Officer was required to reject the nomination papers when ( 13 ) wp7885.10 unsigned forms of the undertakings (Hamipatras) were submitted along with nomination papers. Respondent No.2- Returning Officer was incompetent to allow rectification of such a mistake at the stage of scrutiny of nomination forms. It goes without saying that nomination form of respondent No. 1 in each of the matter was liable to be rejected on the ground that the same was invalid. The acceptance of such nomination form of respondent No.2 is erroneous act on his part. 12. In “Ravi Amrutrao Bagde V/s. Commissioner, Amravati Division & Ors., [2006 (2) Mh.L.J.33]”, the Single Bench of this Court held that grant of time to the candidate to rebut any objection would not permit him to take steps to cure the defect discovered during scrutiny. The nomination form filed by respondent No.1 in each case was invalid at the inception itself. It cannot be said that such defect was curable nor it can be said that such defect was of insignificant nature. 13. In “Bhosale Deepak Manikrao & Ors., V/s. The State of Maharashtra & Ors., [1998(2) Bom.C.R.352]”, the Division ( 14 ) wp7885.10 Bench of this Court held that where the statute provides the procedure to be followed in such cases Election Commission cannot interfere to correct the alleged mistakes and action as per rules can be challenged by way of election petition only and Civil Court jurisdiction is barred. With due respect, this authority is not applicable to the fact situation of the present case. For, in the instant case the results of the elections are withheld. The election process is completed. No election petition can be filed unless the entire election process is completed. As stated before, by the ad-interim order of this Court, respondent Nos. 2 and 3 are directed not to declare the results of the election and therefore, the petitioner cannot be driven out of the Court by saying that his remedy is by way of filing separate election petition. It appears that he had raised objection regarding validity of the nomination papers of respondent No. 1 at appropriate stage, but he was not given any opportunity to agitate the grievance and behind his back the mistake was allowed to be rectified by respondent No.2. 14. Considering the substantial irregularity and ( 15 ) wp7885.10 illegality committed by respondent No.2, it follows that the nomination forms of respondent No.1 in each of the matter could not be accepted and they could not be allowed to contest the election. Hence, the petitions are allowed. The nomination forms of respondent No.1 in each of the matter are held as invalid and therefore they could be disallowed from contesting that election. The respondent No.2 is directed to hold elections of respective seats of the respective wards of the Village Panchayat afresh. The elections shall be held within a period of three months henceforth. The parties may file their nominations afresh and the scrutiny be held as per the rules. 15. The petitions are accordingly disposed of. Rule made absolute in above terms. [V.R. KINGAONKAR,J.] snk/2010/JAN11/wp7885.10