1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 7411 OF 2010 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. WRIT PETITION NO. 7411 OF 2010 MALUBAI JAGANNATH PATIL VERSUS THE RETURNING OFFICER, GRAMPANCHAYAT AND ANR ... Advocate for Petitioner(s) : Mr. Vikram S. Undre, Advocate h/f Mr. Katneshwarkar P.R for the Petitioner. Mr. Uday S. Malte, Adv for Respondent 1 and 2. ... 1. This writ petition takes exception to the order of rejection of nomination form of the petitioner by the Respondent No.1 by order dated 9th August, 2010. 2. This writ petition was heard on 18th August, 2010 by this Court and notices were issued to the respondents. This Court, by said order observed - "The results of the election may not be declared only to the extent of Ward No.2 i.e. one seat available to open category to women." 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 7411 OF 2010 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. 3. Learned counsel appearing for the petitioner submits that the nomination form of the petitioner has been rejected on four grounds by the Returning Officer. Those grounds are, there is no signature of the petitioner on the undertaking given, there is no signature on the declaration, there is no signature on affidavit and no due certificate from the Gram Panchayat is not produced on record. 4. Learned counsel appearing for the petitioner invited my attention to Exhibit-D, page 19 of the writ petition and submitted that the undertaking was given on which there was thumb impression of the petitioner, the declaration was given on which also there was thumb impression. The copy of the said declaration is placed on record at Exhibit-E, page 20 of the compilation of writ petition and on affidavit also there is thumb 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 7411 OF 2010 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. impression of the petitioner. Learned counsel, therefore, relying upon copies of the aforesaid three documents would submit that the order passed by the Returning Officer cannot be sustained and it is contrary to the documents which are placed on record. Learned counsel further submits that the no due certificate was also produced on record. However, the Returning Officer wrongly observed that no dues certificate is not filed by the petitioner. 5. The learned counsel appearing for the petitioner submits that this Court can interfere in an election process in case if it is satisfied that such indulgence subserves progress of the election or facilitates completion of the election. Learned counsel in support of his contention placed reliance on the reported judgment of Division Bench of this Court in the case of 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 7411 OF 2010 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. "Mayaraju Ghavghave V/s Returning Officer and another" reported in 2004 (5) Bom.C.R. 146 and oral judgment of this Court in Writ Petition No.6594 of 2010 in the case of "Bapurao S/o Dattarao Budhwant V/s The State Election Commissioner and another". Therefore, according to the learned counsel for the petitioner when all the documents were placed on record, the Returning Officer was not right in rejecting nomination form of the petitioner on the ground that undertaking, declaration and affidavit are not signed by the petitioner. In fact, on all these documents the petitioner has put her thumb impression. He further submits that even no due certificate from the Gram Panchayat is placed on record. Therefore, according to learned counsel for the petitioner, the petition deserves to be allowed. In the alternative, learned counsel 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 7411 OF 2010 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. would submit that in case this Court is not inclined to entertain this writ petition, the petitioner may be given liberty to approach the competent court for filing election petition. 6. I have given due consideration to the submissions of learned counsel for the petitioner. Since I am inclined to accept the alternative prayer of the counsel for the petitioner, I refrain myself from making any comments on the merits of the matter. Suffice it to say, that the copies of the documents are placed on record by the petitioner. However, in writ jurisdiction it is not possible for this Court to summon the original record from the Returning Officer and then give the finding about the correctness of those documents. It is well settled by the catenae of decisions of the Supreme Court that, whenever there is 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 7411 OF 2010 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. election of the Panchayats or Nagar Panchayats, the courts are barred from interfering in election process. 7. In the instant case, the Returning Officer has rejected the nomination form of the petitioner on the ground that there is no signature of the petitioner on the undertaking, affidavit and also on declaration. The nomination form is also rejected on the ground that the no due certificate is not submitted by the petitioner within time. The contention of the petitioner is that the Returning Officer has rejected the nomination form inspite of having all aforesaid documents on record. Therefore, there appears to be disputed facts between the parties which cannot be gone into in writ jurisdiction. Therefore, the proper forum for the petitioner is the competent court before whom the election petition can 7 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 7411 OF 2010 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. be filed and entertained. 8. In that view of the matter, writ petition is disposed of with liberty to the petitioner to file election petition before the appropriate forum. 9. It is needless to mention that the court concerned will keep in mind pendency of this writ petition and take a liberal view in entertaining the prayer for condonation of delay. Since the petitioner has spent time from August, 2010 till this date in prosecuting this writ petition, it may be desirable that such period is excluded while counting limitation. It is made clear that this Court has not expressed any opinion on the merits of the matter. It is open for the Court concerned to decide the matter on its own merits. However, the interim order passed by this Court needs to be modified. 10. The Returning Officer can declare the 8 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 7411 OF 2010 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S. S. SHINDE, J. result of Respondent No.3 from Ward No.2. However, the election of Respondent No.3 will be subject to outcome of the election petition, if any, filed by the Petitioner. [S. S. SHINDE, J.] Dated:10/10/2011. ans/7411