1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.6475 OF 2010 Sumanbai W/o Uttam Mane Age : 51 years, Occ : Household, R/o Karam, Tq.Sonpeth, Dist.Parbhani. ..Petitioner V/s 1. The State of Maharashtra Through Principal Secretary, Rural Development Department, Mantralaya, Mumbai. (Copy to be served on Government Pleader, High Court of Judicature At Bombay, Bench at Aurangabad). 2. Returning Officer, appointed for the election of Village Panchayat Karam, Tq.Sonpeth, Dist.Parbhani. 3. The State Election Commission, State of Maharashtra, Mumbai. (Copy to be served on Standing Counsel, High Court of Judicature at Bombay, Bench at Aurangabad). ..Respondents ......... Mr.M.P. Kale, Advocate for petitioner. Mr.S.V. Kurundkar, Addl. G.P. for respondent no.1. Mr.M.M. Nerlikar, advocate holding for Mr.S.T. Shelke, advocate for respondent nos.2 and 3. Mr.S.J. Salunke, advocate for intervenor. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 21 st July, 2010. 2 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith and heard finally. 2. By this Petition, the petitioner seeks to challenge rejection of her nomination form by the Returning Officer i.e. respondent no.2. The petitioner filed her nomination form from reserved Constituency. She desired to contest the village panchayat election from constituency no.2. There is no dispute about the fact that she is illiterate woman. There is also no dispute about the fact that the constituency is reserved for O.B.C. category. The petitioner filed her nomination form along with necessary accompaniment, including Annexure - II. The petitioner’s contention is that she affixed her thumb impression on the nomination form and at the bottom of the information, furnished vide Schedule - II. However, declaration at the bottom of Schedule - II was not verified by the Scrutiny Officer. The respondent no.2 held that the Schedule - II information was not attested, and therefore, the nomination form could not be accepted. This is for such a reason that the nomination form of the petitioner came to be rejected. 3. Heard learned counsel for the parties and the learned A.G.P. 3 4. Heard learned counsel for the intervener. Civil Application for intervention is allowed only to the extent that counsel for the intervenor will be heard on merits. 5. On behalf of the respondent nos.2 and 3 as well as intervenors, learned counsel Mr. Nerlikar and Mr. Salunke would submit that the petitioner did not comply Rule 8 of the Bombay Village Panchayat Elections Rules. They would submit that it is the duty of the petitioner, being the desirous candidate, to completely fill up the form and make declaration appended below Annexure-II. They would further submit that the Returning Officer had no business to pinpoint the defects when the form was submitted by the petitioner and it was only at the time of scrutiny that such defects could be considered by him while rejecting the nomination form. They contend that when the candidate is unable to sign, it becomes duty of the candidate to call upon the Returning Officer to get the information verified and attest such information at the bottom of the Annexure-II. They seek to rely on certain observations made in "Maruti Dadu Dadakhe and another V/s Baburao Jyoti Kamble and others" (1986 Mh.L. J. 933) and in the order rendered by Hon'ble Division Bench of this Court in group of Writ Petition Nos.5495/2007 etc. 4 5. The Hon'ble Single Bench of this Court in Maruti Dadu Dadakhe (supra) dealt with some what different fact situation. In that case, the nomination paper itself was submitted without thumb mark of the candidate. It is in the peculiar circumstances of the given case that the learned Single Judge held that the explanation appearing in Rule 8 of the Election Rules deals with the situation where a candidate is not able to put his signature on Form `A' as required should seek help of the Returning Officer. There can not be duality of opinion as regards the proposition that the Returning Officer is not supposed to call upon the candidate to rectify the defect if it is so glaring and yet the candidate is rash or negligent enough to submit the nomination form without due compliance of Rule 8. In the present case, however, the nomination form was duly filled in and only defect which is shown by the Returning Officer is that the Schedule - II regarding declaration of good character of the petitioner is not duly attested. It is important to notice that the Returning Officer did not observe that the nomination form was left with him by any other person nor it is observed that the petitioner did not put her thumb impression on the nomination form or any one expressed doubt about the thumb impression of the petitioner. The verification of such thumb impression may be necessary, if the candidate has not 5 personally submitted the nomination form to the Returning Officer or that some one objects on the ground that the nomination form is not filled up by the concerned candidate or there is some attempt of impersonation. 6. In the group of matters of Writ Petition No.5495/2007 etc. i.e. Sakharam Baburao Shinde (supra), the Hon'ble Division Bench noticed that the defects in the nomination form were in fact of substantial character. The Division Bench did not reject the tenability of argument that if the defect is not of substantial character then benefit could be availed under Rule 11 (2A). At this juncture, Rule 11(2A) may be reproduced as follows :- "11. Scrutiny of nominations :- (1) At the time and place appointed for the scrutiny of nominations, intending candidates and any other person duly authorised in writing by each such intending candidate shall alone be entitled to be present. The Returning Officer shall allow such persons reasonable facilities for examining the nomination papers of intending candidates. (2) The Returning Officer shall examine the nomination papers and decide all objections which may be made before him to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he 6 considers necessary, reject a nomination paper on any of the following grounds, namely :- (i) that the candidate is disqualified or is not qualified under the Act or these rules for election; or (ii) that the candidate has failed to comply with any of the provisions required by these rules or the Act. (2A) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character." (Emphasis supplied by me) 7. Perusal of Rule (2A) mandates that nomination paper be not rejected if the defect/s noticed by the Returning Officer is/are not of substantial character. In the present case, the respondent no.2-Returning Officer did not observe that the defects noticed by him was of substantial character. Nor it was his observation that the Annexure II was not submitted by the petitioner or that it did not bear her thumb impression. The provision of Rule 11 (2A) would be rendered nugatory if rejection of nomination paper on flimsy ground is made permissible. It would be against the democratic principles, and, moreover, it would make the Returning Officer only as a stamping authority or authority only to carryout the work without analyzing whether the defect is of 7 significant nature or that it could be condoned being of hyper technical character. The respondent no.2 should have, therefore, called upon the petitioner to verify the information if he had any doubt about the information made in the Annexure-II. It is pertinent to note that nobody even rumored that the character of the petitioner was of dubious nature, and therefore, the respondent no. 2 needed proper verification of such information. The substantial compliance of Rule 8 along with the nature of so called defect, which could be condoned in view of Rule 11 (2A), warranted approval of the nomination paper by the respondent no.2. It is true, no doubt, that ordinarily this Court shall not interfere with the election process at such premature stage, and normally, consistent view is that the remedy would be of filing Election Petition and agitate all such questions. This, of course, is the view limited to the area where certain disputed questions of facts are required to be dealt with. Still, however, where the facts stare in your eyes and make it manifest that the election itself is likely to be upsetted due to rejection of such nomination paper on flimsy ground then interference by this Court invoking the jurisdiction under Article 226 of the Constitution of India is called for. This is necessary in order to avoid the multiplicity of the litigation as well as in order to shorten length of the litigation. 8 8. In the result, the Petition is allowed. The impugned order is set aside. The petitioner shall be allowed to participate in the election process as a candidate and the Returning officer shall call upon her to put her thumb impression at the bottom of schedule-II and the same may be attested. If she will not however turn up to comply with the requirement, then her nomination form may be rejected by giving appropriate reasons. If the requirement is complied with within five (5) days, she may be assigned symbol and may be allowed to participate in the election. Rule is made absolute accordingly. 9. Parties may act on a copy of this judgment, duly authenticated by the Court Sheristedar. (V.R.KINGAONKAR) JUDGE gas/wp6475.10