WP.356-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No. 356 OF 2011 Dattu Rambhau Dhikale ...Petitioner Vs. Bhausaheb Varaji Dhikale & Ors. ...Respondents *** Mr. Rameshwar N. Gite, for the Petitioner. Mr. S. D. Shinde, for the Respondent No.1. Mr. R. M. Patne, AGP for Respondent Nos. 4 & 5. *** CORAM: V. M. KANADE J. DATE : JANUARY 21, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the petitioner, respondent No.1 and the learned AGP appearing on behalf of respondent Nos. 4 & 5. The petitioner is aggrieved by the acceptance of the nomination form by respondent No.3 Returning Officer, in respect of an election which has been held on 12-2-2011. It is submitted that respondent No.1 has stated in his nomination paper that his annual income is less than Rs.20,000/- and therefore, has filed the nomination WP.356-11 - 2 - for contesting the election from the seat reserved for weaker sections of the society. It is submitted that Government of Maharashtra has issued a notification in which it is stated that a person whose annual income is not more than Rs.20,000/- would be a person belonging to the weaker sections of the society. It is submitted by the learned counsel appearing for the petitioner that respondent No.1 owns 48R Bagayat land and has a grape vineyard in his land and his annual income is Rs. 2.5 lakhs. 2. It is submitted that by virtue of provisions of Rs.73-B of the Maharashtra Cooperative Societies Act, seats are to be reserved to the persons belonging to economically weaker sections and also belonging to the Scheduled Castes and Scheduled Tribes, etc. It is submitted that in the affidavit-in-reply, respondent No.1 admitted that he is having a grape vineyard. However, he has stated that on account of natural calamities, he has suffered loss. It is submitted that the legislature never intended that such persons should be permitted to get the benefit of provisions of Section 73-B(b) of the said Act. It is also submitted that if a person is not eligible to contest the election, this Court while exercising writ jurisdiction under Art. 226 of the Constitution, can set aside any nomination. Reliance is placed on the judgment of Division Bench of this Court in the case of – Dalsing s/o Shamsing Rajput, Petitioner vs. WP.356-11 - 3 - State of Maharashtra & Ors. [2006(3) Mh.L.J. 952]1 3. On the other hand, learned counsel appearing on behalf of respondent No. 1 firstly, submits that the election process has begun and therefore, this Court should not interfere after the process of election is started; secondly, it is submitted that there is no appeal was filed against the order of acceptance of nomination; thirdly, it is further submitted that the competent authority who is authorised to issue certificate is the Nayab Tahsildar and the Nayab Tahsildar has issued the certificate in favour of respondent No.1, which is annexed at Exhibit “B” to the petition. It is therefore, submitted that this Court cannot go into the disputed question of facts while exercising the writ jurisdiction under Art. 226 & 227 of the Constitution of India. 4. There is much substance in the submissions made by the learned counsel appearing for respondent No.1. The Nayab Tahsildar is admittedly an authority for the purpose of issuing the income certificate. It is stated in the said certificate dated 16-4-2010 that the actual income of respondent No.1 is less than Rs.20,000/- per year. Therefore, under these circumstances, it is not possible for this Court to decide the disputed question of fact as to whether the income of petitioner is less 1 [2006(3) Mh.L.J. 952] WP.356-11 - 4 - than Rs.20,000/- or more than that. Apart from this, the election process has already commenced and the process of scrutiny of nomination is over. The voting schedule is to be held on 12-2-2011. On both these counts, therefore, it is not possible to interfere with the impugned order of acceptance of the nomination. The petitioner can always file election petition on the grounds which are raised in the petition, if they are available. Writ petition is, therefore, dismissed. If such an election petition is filed, the trial Court shall not be influenced by any of the observations made by this Court while disposing of the said election petition. [ V. M. KANADE J.]