(1) WP. 6637.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6637 OF 2010 Narayan Baburao Borse .. PETITIONER VERSUS The State of Maharashtra and others .. RESPONDENTS Mr. R.N. Dhorde, Advocate h/f. Mr. Mukul S. Kulkarni, Advocate for the Petitioner Mr. S.V. Kurundkar, Addl. G.P. for the respondent-State Mr. S.T. Shelke, Advocate for the respondent no.2 ... CORAM : V.R. KINGAONKAR, J. DATED : 27TH JULY, 2010 ORAL ORDER:- 1. Heard learned counsel. The petitioner filed his nomination from the same ward, firstly, from the general category and secondly, lateron from OBC category. The Returning officer rejected his nomination from OBC category. (2) WP. 6637.2010 2. Contention of the learned counsel for the petitioner is that the petitioner sought withdrawal of his candidature from the general category on the date of withdrawal within the permissible period, but that Returning Officer erroneously held that the withdrawal could be only from OBC category because the nomination from general category was filed at the first instance. The Returning Officer referred to order dated 13.11.2007 rendered by the State Election Commissioner. 3. It appears from the order of State Election Commissioner that in view of the observations in Writ Petition no. 5664 of 2007 ("Sudhakar Vithal Misal Vs. State of Maharashtra and others 2007(6) All MR 773") direction was given to allow nomination only from one of the constituency. The Election Commissioner directed that first nomination will be valid and second nomination filed from the same constituency will be invalid. (3) WP. 6637.2010 4. Counsel for the petitioner would submit that such direction could not have been issued and the Returning Officer could not have followed such direction atleast until the expiry of the period of withdrawal as stipulated in the election programme. He would point out that election programme published under rule 7(2) ("Ex.A") shows that the withdrawal of nomination was permissible on 19.7.2010 between 11.00 am. to 3.00 pm. and that the petitioner had submitted his withdrawal within the given span of period. 5. There is no duality of opinion about the permissibility of the withdrawal as per option of the petitioner, if it is within the period provided under the election programme. Needless to say the petitioner was eligible to withdraw any of the nomination form on 19.7.2010 between 11.00 am. to 3.00 pm. and the option was available to him. Thereafter, however, the Returning Officer could have rejected second nomination paper filed by the petitioner, retaining the nomination paper filed at first instance. (4) WP. 6637.2010 6. Learned counsel for the petitioner has not filed copy of the notice of withdrawal as per annexure-5 which was submitted by the petitioner. He has filed copy of the receipt/acknowledgment regarding submission of application. The copy which is filed at page 48 shows that there is over-writing and instead of the words "OBC" the words "General Category" are written. The copy filed by him at "Ex.E" (P-45) also is interpolated and a portion is over-written. Even that portion which is over- written shows that what was withdrawn was the nomination from OBC category. That was filed on 19.7.2010. Learned counsel for the respondents would submit that original withdrawal of the nomination is from the OBC category. Perusal of the withdrawal notice corroborates such contention. In any case, that is the disputed question of fact which cannot be entertained by this Court. It appears prima facie that the petitioner, in fact, withdrew his candidature from the OBC constituency and now has tried to change his stance. (5) WP. 6637.2010 7. In this view of the matter, there is no merit in the Petition. Hence, it is dismissed. Liberty is granted to the petitioner to file Election Petition. Sd/- [V.R. KINGAONKAR, J.] arp