1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6474 OF 2009 Yadavrao S/o.Bhimrao Suryawanshi, Age-68 years, Occu-Agriculture, R/o.At Post Sane Guruji Nagar, Omerga, Tq.Omerga, District : Osmanabad PETITIONER VERSUS 1. The State Election Commissioner, Maharashtra State, Mantralaya, Fort, Mumbai-32, 2. The Returning Officer/Election Officer, of State Assembly Elections-2009, Omerga Constituency bearing No.240, Tq.Omerga, Dist.Osmanabad RESPONDENTS Mr.V.D.Hon, learned counsel for the petitioner. Mr.S.T.Shelke, learned counsel for respondent no.1 Mr.Alok Sharma, learned Assistant Solicitor General for respondent no.2. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 01/10/2009 ORAL JUDGMENT : (Per P.V.Hardas, J.) 1. At the outset, Shri.V.D.Hon, learned counsel for the petitioner states that the petitioner does not question the impugned order dated 2 26/09/2009 in so far as it rejects the nomination of the petitioner filed as candidate of the registered un-recognized party i.e.Jansurajya Shakti party. In the light of that therefore the present order does not deal with the order of the returning officer rejecting the aforesaid nomination. 2. Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, this petition is heard finally at this stage. 3. This is a petition of a candidate who had submitted his nomination for contesting the election from Omerga Constituency. Since the challenge in respect of rejection of the nomination of the petitioner as a candidate of Jansurajya Party is not pressed, we are concerned with the nomination filed by the petitioner as an independent candidate. 4. A copy of the nomination form has been annexed to the petition as Exh.P-1 collectively. The nomination form is divided into 2 parts. The first part deals with the nomination to be submitted by a candidate whose candidature is sponsored by the recognized party. The recognized party is defined in the foot note of the nomination form as a party generally “recognized political party” means a Political Party recognized by the Election Commission under the Election Symbols (Reservation and Allotment) Order. 1968 in the State concerned. Part 2 of the nomination form deals with the 3 nomination to be submitted by an independent candidate. The nomination of the independent candidate is required to be supported by 10 proposers. The petitioner had submitted a form as a candidate of a political party as well as an independent candidate. The original record of the scrutiny of the nomination of the petitioner has been made available to us by Shri.Alok Sharma, learned Assistant Solicitor General, who appears on behalf of the Returning Officer. It appears that in respect of the proposer at Sr.No.10, inadvertently the serial number in the voters list in respect of the said proposer was written as Sr.No.252 whereas in fact the Sr.No. is 109. The impugned order states this very reason for rejecting the nomination of the petitioner. 5. It is not disputed before us that the proposer at Sr.No.10 namely Shri.Suryawanshi Dilip Jagannath is a valid voter whose name figures in the voters list at Sr.No.109. Inadvertently, as pointed out by us, the serial number of the proposer at Sr.No.10 was written as 252 instead of 109. 6. Shri.Hon, learned counsel for the petitioner has invited our attention to the extract of the handbook for returning officer, particularly to para no.9.4. Para no.9.1 onwards deals with the grounds which have been held to be insufficient for rejection of nomination papers. In order to appreciate the controversy, it would be useful to reproduce para no.9.4 from the said handbook. Para no. 9.4 of the said handbook reads as under. In the past, there were instances where nomination 4 papers were rejected on flimsy grounds, e.g. For mistakes made in the nomination paper regarding; (a) the year of election, or (b) the exact name of the House of the Legislature or the constituency, (c) the description of an electoral roll number, or (d) the choice of symbols, or (e) some discrepancy between the age, name, or other particulars of the candidate or his proposer as given in the nomination paper and in the electoral roll and so on. Such unjustifiable and improper orders of rejection on technical grounds had led to a large number of election petitions and the eventual setting aside of several elections with consequent avoidable waste of time, money and labour for all concerned. Similar instances of improper rejections should not occur against and it is upto you to interpret the provisions of the law intelligently and with commonsense. Do not, therefore, reject any nomination paper for such technical or clerical errors or discrepancies. Most of them can and should be directed by you to be set right at the time of the presentation of the nomination paper (Section 33(4) proviso). It would, therefore, be very undesirable if you fail at the proper stage to help a candidate by exercising your powers and discretion under the proviso to section 33(4) and later at the time of scrutiny you reject his nomination paper on the ground of those very defects which could have been set right under that section. 5 7. Perusal of the said paragraph 9.4 indicates that it has been considered that the description of an electoral roll number would not be a substantial defect in the nomination paper entailing the rejection of the same. Further part of para no.9.4 states that the nomination paper should not be rejected on such technical or clerical error discrepancies which can be set right at the time of presentation of the nomination paper. Para no.9.4 further directs the returning officer to exercise the discretion and the powers under proviso to section 33(4) of The Representation of the People Act, 1950 and at the time of scrutiny to ensure that the nomination paper is not rejected on these defects which could have been set right under that section. Proviso to section 33(4) of The Representation of the People Act, 1950 also provides that - On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls : Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the 6 nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked. The aforesaid proviso in terms mandates that the returning officer shall permit necessary corrections to be carried out where necessary. 8. Para no.10.1 deals with the grounds for rejection of the nomination paper. None of the grounds enumerated in para no.10.1 are present in the present case. The defect in wrongly stating the number of the proposer in the voters list is not a substantial error or the ground on which the nomination paper could have been rejected. Shri.Sharma, learned Assistant Solicitor General had made available to us the record in respect of the nomination paper of one Shri. Jagannath Eknathrao Londhe, in which practically the said candidate had stated wrong serial number in respect of 8 proposers out of 10. It is stated before us that accordingly it was brought to the notice of the concerned candidate and the necessary correction of the serial numbers of the voters/proposers was allowed to be done. In the present case, the impugned order does not disclose that any such opportunity was afforded to the petitioner at the time of either 7 submission of his nomination form or at the time of scrutiny for correcting the serial number of proposer no.10 as it appeared in the voters list. 9. Since we have already come to the conclusion that stating the wrong serial number of the voter in the nomination form by itself is not a substantial defect, according to us the nomination form has been wrongly rejected. We further find that the said proposer is a valid voter as his name appears in the voters list at Sr.No.109. Normally, this Court would be extremely slow in interfering in petitions filed questioning the rejection of the nomination papers as any interference by this Court would hamper the further progress of election. However, in the present matter we find that the impugned order was passed on 26/09/2009 and the election/voting is scheduled on 13 th October 2009. This petition was on board yesterday and this Court was about to pass the orders but came to be adjourned for today at the request of respondents. We are further informed that the voting is carried out with Electronic Voting Machine and ballet papers are only required to be printed in so far as those voters who reside beyond the territorial limits of the constituency and who can not attend at the time of voting and therefore the ballet papers are sent by Post. Shri.Sharma states that today only about 13 ballet papers have been sent by Post and the remaining ballet papers have not been sent. 10. In that light of the situation and particularly as we find that 8 the progress of the election is not likely to be hampered, we allow this petition in the peculiar facts enumerated above, and quash and set aside the order of the returning officer dated 26/09/2009 invalidating the nomination paper of the petitioner filed as an independent candidate. In so far as the rejection of the nomination paper filed by the petitioner as a candidate sponsored by the registered un-recognized Jansurajya party is concerned, the learned counsel does not press the challenge raised in the petition to that effect. We, therefore, hold that the nomination of the petitioner as an independent candidate is a valid nomination and ought to be accepted. The respondents therefore to take effective and speedy measures to ensure that the name of the petitioner appears in the ballet papers and to send the ballet papers by Post and take all such measures as are necessary for the voting to be held on 13 th October 2009. 11. It is the contention of Shri.Alok Sharma, learned Assistant Solicitor General that even the returning officer could not locate the serial number of the proposer at Sr.No.10 as the number which was stated in the ballet paper was 252 while the related serial number was 109, according to us there is nothing to indicate that any such opportunity was given to the petitioner for rectifying the aforesaid defect. 12. Rule is thus made absolute on the above terms and in the circumstances there will be no order as to costs. Copy of this order 9 duly authenticated by the Shirastedar of this Court be provided to either counsel to act upon. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/OCT 2009/wp6474-09