1 wp 7709.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7709 OF 2011 Rameshwar Kaduba Late .. Petitioner Versus The State of Maharashtra and others .. Respondents Shri N. R. Solunke, Advocate for the Petitioner. Shri P. P. More, A.G.P. for the Respondent/State. Shri D. P. Palodkar, Advocate for the Respondent No. 5. CORAM : S. V. GANGAPURWALA, J. DATE : 04TH OCTOBER, 2011. PER COURT : . The present respondent No. 5 had filled in nomination form from the economically weaker section for the election of Vividh Karyakari Seva Sahkari Sanstha Ltd. Mahalpimpri. The nomination form of the respondent No. 5 was initially rejected by the Returning Officer. Against the said rejection the respondent No. 5 preferred an appeal. The Appellate Authority allowed the appeal and accepted the nomination form of the respondent No. 5. Aggrieved thereby the petitioner has filed the present petition. 2 wp 7709.11 2. Shri Solunke, the learned counsel for the petitioner submits that, the respondent No. 5 is not eligible to contest the election from the seat reserved for the economically weaker section, as he does not belong to said category. The respondent No. 5 has got land admeasuring more than 1H, so also he is running a shop and is using telephone. All these factors go to show that the respondent No. 5 does not belong to economically weaker section. The learned counsel further contends that the certificate produced by the respondent No. 5 before the Appellate Authority also does not state that he belongs to economically weaker section and is not given in proper format. The said certificate also is erroneous, as the respondent No. 5 is running his business, has got land more than 1 Hector, using telephone and earning income from agricultural land as well as business cannot be said to be belonging to a economically weaker section. The learned counsel further contends that, though the last date of withdrawal of nomination is over and the list of valid nominated candidates is published, still the petitioner can challenge the same in the writ petition. For the said purpose, the learned counsel relies on the judgment of Division Bench of this Court in a case of Dalsing S/o Shamsing Rajput Vs. State of Maharashtra and others reported in 2006 (3) Mh. L. J. 592 3 wp 7709.11 and contends that if the election programme is not disturbed, still this Court can interfere. The learned counsel further contends that by allowing the writ petition, election programme would not be disturbed and as such contends that the writ petition can be entertained. 3. Shri Palodkar, the learned counsel for the respondent No. 5 submits that on the date when the list of valid nominated candidate is published the respondent No. 5 is the lone candidate and when there is no other candidate, the voting is not necessary. The respondent No. 5 would stand elected. In such circumstances the election of the respondent No. 5 cannot be set aside in the petition. 4. The whole process of conducting the election except voting is over. The voting is to take place on 09th October, 2011. The respondent No. 5 contends that there is no other candidate opposing him and on the date of the publication of the valid contesting candidates list, he would be deemed to be elected and the election can only be set aside by way of an election petition. Whether the said certificate issued by the authority is genuine or not will have to be decided on the evidence adduced. What is the income of agricultural land and the business will have to be 4 wp 7709.11 considered on evidence. It cannot be gone into in a writ petition. The Division Bench of this Court in a case of Dalsing Shamsing Rajput was concerned with a case wherein the name of the respondent therein did not appear in the voters list and his nomination form was accepted. In that context the Division Bench has ruled that as the name of the respondent No. 5 is not appearing in the voters list, he is not eligible and had entertained the petition. In the present case, whether the said certificate issued by the Tahsildar about income of the respondent No. 5 is genuine and the exact extent of the income of the respondent No. 5 cannot be decided in the writ petition and the same would be decided upon the evidence adduced by the parties. 5. In the light of the above, I am not inclined to entertain the writ petition. The writ petition is as such dismissed, however, with no order as to costs. 6. Needless to state the petitioner is at liberty to file election petition, if so advised. [ S. V. GANGAPURWALA, J. ] bsb/Oct. 11