.{1}. IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.193 OF 2008 IN WRIT PETITION NO.4418 OF 2008 WITH CIVIL APPLICATION NO.378 OF 2008 IN LETTERS PATENT APPEAL NO.193 OF 2008 WITH CIVIL APPLICATION NO.250 OF 2008 IN LETTERS PATENT APPEAL NO.193 OF 2008 Zulabai Bhairu Chavan. ..Appellant. Versus Sou.Anusaya Chune Pawar and 8 others. ..Respondents. ... Mr.I.M. Khairdi, Advocate for the appellant. Mr.S.A.Kumbhakoni, Advocate for respondent Nos.1 to 6. Mr.G.S. Godbole, Advocate i/b. Nitin Mulye, Advocate for respondent No.7. Mr.V.P. Malvankar, A.G.P. for respondent Nos.8 & 9. Mr.Mehaboob Baudagi Shaikh, Respondent No.7 present in person. ... CORAM : J.N. PATEL AND CORAM : J.N. PATEL AND CORAM : J.N. PATEL AND SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. SMT.V.K.TAHILRAMANI,JJ. DATED : 26TH FEBRUARY, 2009. DATED : 26TH FEBRUARY, 2009. DATED : 26TH FEBRUARY, 2009. P.C.:- P.C.:- P.C.:- .{2}. 1. Heard. 2. The appellant as well as respondent No.1 had filed nomination forms for the election of Sarpanch from Ghodtanda. The said post of Sarpanch was reserved for lady candidate from O.B.C. category. Only two candidates i.e. appellant and respondent No.1 had filed nomination papers. Nomination paper of respondent No.1 came to be rejected. Therefore, as the appellant was the only remaining candidate hence, she was declared elected. 3. The said election came to be challenged by respondent No.1 by filing dispute under Section 33(5) of the Village Panchayat Act, 1958. The Additional Collector, Solapur set-aside the election. This order was challenged by the appellant before the Divisional Commissioner, Pune. The Divisional Commissioner, Pune by order dated 21.5.2008 dismissed the appeal. Both the lower authorities observed that the appellant as well as respondent belong to the same caste and their caste is included in the O.B.C. category. They observed that the nomination paper of .{3}. respondent No.1 was rejected on the ground that she does not belong to O.B.C. category. In view of the fact that both the candidates belong to O.B.C. category, both the lower authorities held that the nomination of respondent No.1 was wrongly rejected and consequently the election of the appellant came to be set-aside. 4. Before the learned Single Judge, the learned Advocate for the appellant submitted that the order rejecting the nomination papers of respondent No.1 could not have been faulted for the reason that there were blanks in the nomination forms of respondent No.1 and the nomination form was not even signed by the respondent No.1. He submitted that in such case, the nomination form of respondent No.1 was bound to be rejected as the provisions of Rule 11(2)(ii) of the Bombay Village Panchayat Rules was not at all observed and moreover as the nomination paper was not signed, it cannot be said to be a nomination paper in the eyes of law. The learned Single Judge, however, did not consider this ground by observing that the appellant cannot be allowed to agitate any new ground to support the rejection of the nomination of the .{4}. respondent No.1. 5. The learned Single Judge dismissed the Petition on the ground that the only reason given by the returning officer rejecting the nomination of the respondent No.1 was that she does not belong to O.B.C. category which ground was found to be incorrect. 6. However, it is seen that the ground raised before the learned Single Judge was infact raised before the Collector. It is not as if the said ground was not at all raised by the appellant at any point of time before the lower authorities. Hence, it cannot be said that any new ground was raised by the appellant. Thus, it cannot be said that a new case or ground was put forward by the appellant. In this respect, we find the observation of the learned Single Judge to be erroneous. 7. In addition to the above, we find that there is one other reason to set-aside the election of the respondent No.1 viz. this L.P.A. came up for admission before the Court on 22nd August, 2008, on .{5}. that day, the Court issued notice returnable on 19th September, 2008 and directed that till then the election shall stand stayed. This fact was informed by Fax to the returning officer Mr.Mehaboob Shaikh. However, despite this fact, on the very same day at 2:00 p.m., the elections came to be held. This fact is even recorded in the minutes of the proceeding of the meeting held on that day. At that time, the appellant had also, by way of abundant precaution, filed her nomination paper under protest and without prejudice to her right pending LPA. However, her nomination paper was declared as invalid and the respondent was declared as elected unopposed. This fact was also brought to the notice of the Court by the appellant. In view of this fact, by order dated 17th October, 2008 show-cause notice came to be issued against the returning officer - respondent No.7 asking as to why proceedings under the Contempt of Courts Act should not be issued against him. In the said order, it was further directed that respondent No.1 shall not take charge of the post of Sarpanch. Pursuant to the show cause notice, the respondent No.7 filed his affidavit-in-reply. In the said affidavit, it is admitted that on 22.8.2008 .{6}. itself, he received copy of Advocate’s letter informing him that the High Court had stayed the process of the election. However, as there was pressure from the people in the area, he had no option but to declare the election to avoid unwarranted circumstances. 8. In the meantime, the appellant preferred Civil Application No.378 of 2008 setting out these facts therein that though the returning officer i.e. respondent No.7 had been informed of the order of the High Court granting stay to the election, despite this, he held the election and respondent No.1 came to be declared as elected. After setting out the facts in the said Civil Application, the appellant prayed that action be taken against respondent No.7 for not obeying the orders of the Court and for showing disregard to the order dated 22.8.2008. 9. On perusal of the affidavit filed on behalf of the State as well as the stand taken by the returning officer, it is seen that there is a clear violation of the order of the Court. From the record it is clear that the order of this Court dated 22.8.2008 .{7}. was brought to the notice of the respondent No.7 and the concerned authorities before the election was declared. In this view of the matter, it will have to be held that the entire process of election wherein respondent No.1 came to be declared as elected, is vitiated on account of disobedience of the orders of the Court. 10. However, in view of the fact that respondent No.7 who is present in-person has tendered his affidavit wherein he has tendered his unconditional apology and he has also stated in-person that he tenders his unconditional apology and undertakes that in future there shall be no default on his part, we accept the apology tendered by respondent No.7 and caution him that in future he shall not repeat such an act. The show-cause notice issued against him is discharged. 11. In view of all the above facts, the election of respondent No.1 to the post of Sarpanch of Ghodtanda is set-aside. The matter is remanded back to the stage of scrutiny of the nomination forms. Thereafter, the process in accordance with law be .{8}. followed by the authorities to hold election of the post of Sarpanch, Ghodtanda. The learned A.G.P. as well as Mr.Khairdi the learned Advocate for the appellant undertake to inform this order to the concerned authorities. The concerned authorities to take necessary steps to hold the elections within three weeks from the date of communication of this order. 12. Letters Patent Appeal is allowed in above terms. Civil Applications are also disposed of accordingly. [J.N.PATEL,J.] [J.N.PATEL,J.] [J.N.PATEL,J.] [SMT.V.K.TAHILRAMANI,J.] [SMT.V.K.TAHILRAMANI,J.] [SMT.V.K.TAHILRAMANI,J.]