1 WP 9172.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9172 OF 2011 Shantabai W/o Asaram Khajekar Age : 65 Yrs., Occ. Household, R/o : Mansuri Colony, Gangapur. .... PETITIONER V E R S U S 1. The State of Maharashtra 2. The State Election Commission Maharashtra, Mumbai. 3. Returning Officer for Election of Nagar Parishad, General Election 2011, Gangapur, Dist. Aurangabad. .... RESPONDENTS Mr. C.V. Thombre, Advocate for the petitioner. Mr. K.B.Choudhari, Addl. Govt. Pleader for State. Mr. S.T. Shelke, Advocate for Resp. No. 2. 2 WP 9172.2011 - [ J ] CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 30/11/2011. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. The election programme for the election of Municipal Council, Gangapur was published. The date of filing the nomination forms was from 16/11/2011 to 22/11/2011. The date of scrutiny was scheduled on 23/11/2011. The petitioner submitted three ( 3 ) sets of nomination forms. The petitioner submitted one nomination form as independent candidate on 22/11/2011 at 1.20 p.m. The petitioner submitted the second nomination form at 1.30 p.m. as the official candidate of Republican Party of India [ Democratic ] [ For short, ‘ R.P.I.’ ]. The petitioner submitted the third nomination form at 2.55 p.m. as official candidate of Nationalist Congress Party [ For short, ‘ N.C.P. ’ ]. All these three ( 3 ) forms were for the same Ward. On the date of scrutiny, the petitioner expressed his desire to contest as official candidate of N.C.P. The Returning Officer vide its Order dated 23/11/2011 accepted the nomination form of the petitioner as a candidate of R.P.I. The petitioner assails the said order in the present Writ Petition. 3 WP 9172.2011 - [ J ] 3. Mr. C.V.Thombre, the learned counsel for the petitioner submits that there is nothing in the provisions of the statute or the rules, which puts an embargo on the right of the petitioner to contest as a candidate of a particular party. When the petitioner had expressed his willingness to contest as a candidate of N.C.P., then the Returning Officer did not have the jurisdiction to ask the petitioner to contest the election as a candidate of R.P.I. According to the learned counsel, it is the will and choice of the petitioner to contest the election as a candidate of a particular party. 4. Mr. S.T.Shelke, the learned counsel for respondent nos. 2 and 3 submits that the Election Commissioner has issued guide-lines. As per the said guide-lines if the candidate fills in the nomination form as an independent candidate, so also as a candidate of political party, then in such circumstances, as per the guide-lines the nomination form as a candidate of a political party is to be accepted. The learned counsel further contends that as per Rule 12 of the Maharashtra Municipal Councils, Nagar Panchayats Election Rules, 1966 [ For short, ‘ said Rules ’ ] the candidate is entitled to fill in four ( 4 ) set of nomination forms. There is no provision for withdrawal of nomination form. In such circumstances, as per the guide-lines issued by the Election Commission, the nomination form submitted by the candidate of a political party is to 4 WP 9172.2011 - [ J ] be accepted as against the nomination form filled in as an independent candidate. In the present case, the petitioner had filled in one form as an independent candidate and two ( 2 ) forms as a candidate of two ( 2 ) different political parties. In view of that, the first nomination form in the point of time as a candidate of R.P.I. has been accepted by the Returning Officer and the same is in consonance with the Rules and the guide-lines issued by the Election Commission, as after the nomination form as an independent candidate is ignored, the next nomination form was filled in was of R.P.I. 5. The learned counsel also submits that as per the guide-lines, for distribution of the symbol also, the symbol of the first nomination form is to be given even if first nomination form is rejected. In view of that, the act of the Returning Officer in accepting the nomination form as the candidate of R.P.I. was legal and proper. 6. With the assistance of the learned counsel, I have gone through the impugned order. 7. The petitioner has filled in three ( 3 ) set of nomination form for contesting the election of Ward No. 4-A of the Gangapur Municipal Council. It is also not disputed that all the three ( 3 ) nomination forms 5 WP 9172.2011 - [ J ] were valid. At the time of scrutiny, the Returning Officer found all the three ( 3 ) nomination forms valid and complete in all respects. The two ( 2 ) nomination forms submitted as a candidate of two ( 2 ) different political parties, also were complete with form No. A and B. It is also evident from the order impugned that the petitioner, at the time of scrutiny, had made it clear that he would like to contest the election as the official candidate of N.C.P. In such circumstances, the only question that would arise is, whether the will of the candidate would prevail ? 8. Perusal of said Rules it nowhere transpires that there is any embargo or impediment on the right of a candidate to contest the election as a member of any political party. It is also manifest from Rule 12 of the said Rules that a candidate is entitled to fill in four ( 4 ) sets of nomination forms. The guide-lines issued by the Election Commission also lays down that if a candidate fills in the nomination form as an independent candidate, so also as a candidate of any political party, then in such circumstances, his candidature as a candidate of the political party is to be accepted. But, the Rules nor the statute nor the guide-lines take into consideration the contingency of the present nature that if a candidate fills in the nomination form as an independent candidate, so also as the official candidate of two ( 2 ) different political parties and all the nomination forms are valid, then in such circumstances, which 6 WP 9172.2011 - [ J ] nomination form is to be accepted. The Rules, the guide-lines and the statute are silent in this respect. 9. When the Rules, the statue and the guide-lines are silent, then in such circumstances, the purposive interpretation will have to be given. The will of the candidate would be of a paramount consideration. It is for the candidate to contest the election as per his choice and when the candidate has given his choice/desire to contest as a candidate of a particular political party, then the same shall be respected. 10. In the present case, it is unambiguous that the petitioner had conveyed in no uncertain words that he would prefer to be a candidate of N.C.P. In such circumstances, the Returning Officer could not have imposed his own views and should have allowed the candidate to exercise his choice. 11. To contest the election is a statutory right. The said rights since the date of filling in the nomination form till the declaration of result would be strictly governed by the provisions of the statute and the rules governing the said election. The right of the candidate can not be negated except according to the provisions of the statute and the rules. When the statute and the rules do not lay down any prohibition on the right of the 7 WP 9172.2011 - [ J ] candidate to contest the election as the official candidate of a particular political party, then in such circumstances, the choice given by the petitioner shall have to be accepted. 12. In view of the above, the impugned order is quashed and set aside and the nomination paper of the petitioner as the candidate sponsored by N.C.P. shall be accepted, more particularly, in view of the fact that the said nomination paper is held to be valid by the Returning Officer also. 13. Rule is accordingly made absolute in above terms. No costs. Authenticated copy be given. [ S.V. GANGAPURWALA,J. ] KNP/WP 9172.2011 - [ J ]