( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6392 OF 2010 Dilip s/o Sukhdeo Mali PETITIONER VERSUS The State of Maharashtra and others RESPONDENTS WITH WRIT PETITION NO. 6393 OF 2010 Mamunabee w/o Mumin Baig Musalman PETITIONER VERSUS The State of Maharashtra and others RESPONDENTS WITH WRIT PETITION NO. 6394 OF 2010 Mumin Baig s/o Rahim Baig Musalman PETITIONER VERSUS The State of Maharashtra and others RESPONDENTS WITH WRIT PETITION NO. 6395 OF 2010 Sumanbai w/o Nimba Mali PETITIONER VERSUS The State of Maharashtra and others RESPONDENTS .... Mr. N.L. Choudhari, advocate for the petitioner in all writ petitions.. Mr. D.R. Korade, AGP for the respondent/State in all writ petitions.. Mr. M.M. Nerlikar, advocate holding for Mr. S.T. Shelke, advocate for the respondent No. 2 in all writ petitions. .... ( 2 ) [CORAM : V.R. KINGAONKAR, J.] [DATE : 19th July, 2010] PER COURT : 1. Heard learned counsel. 2. The petitioners’ nomination papers came to be rejected as candidates for the Village Panchayat Election for the reason that they encroached over the Government property. According to the petitioners, the encroachment was regularized. The question whether the Gram Panchayat could have regularized the encroachment requires determination. The disputed question of fact cannot be decided in this writ petition. 3. A Division Bench of this Court in “Vinod Pandurang Bharsakade vs. Returning Officer, Akot and another” 2003 (4) Mh.L.J. 359, held that improper rejection or acceptance of nomination paper can be made the subject matter of challenge in the election petition under section 15 of the Bombay Village Panchayats Act, 1959. It has been held that writ petition under Article 226 of the Constitution of India is not maintainable in such a matter. As against this, my attention is invited to certain observations of another Division Bench of this Court in “Mayaraju Ghavghave vs. Returning Officer and ( 3 ) another” 2004 (5) Bom.C.R. 146 and “Vasant s/o Vyankoji Shinde vs. The State of Maharashtra and others” (Writ Petition Nos. 6782/2008, etc.). It may be mentioned that in writ petition No. 6782/2008 and others, the above referred judgement of the Division Bench was not taken into account. It appears, no doubt, that Division Bench in “Mayaraju Ghavghave vs. Returning Officer and another” (supra) did consider the judgement of another Division Bench in “Vinod Pandurang Bharsakade vs. Returning Officer, Akot and another” (supra). However, the subsequent Division Bench has taken a different view on the premise that the view taken by the earlier Division Bench is founded on interpretation of Article 243-O (b) of the Constitution. It is well settled that if there appears conflict of view taken by two (2) Division Benches of the same High Court, the view which appears to be proper may be followed in a subsequent case. It is not necessary to follow only recent view. In my opinion, when the Division Bench in “Vinod Pandurang Bharsakade vs. Returning Officer, Akot and another” elaborately analyzed the judgement of the Supreme Court in “K.K. Shrivastava vs. Bhupendra Kumar Jain and others” (AIR 1977 SC 1703) and other judgements, relevant to the election law, judicial discipline requires that this Court should follow the same view. I find it difficult to ( 4 ) overcome the difficulty. One cannot be oblivious of the fact that rejection of the nomination paper by the Returning Officer cannot be termed as an arbitrary act when certain reasons are ascribed. Whether the petitioners had committed encroachment on public property or not is a disputed question of fact. This Court cannot determine this issue which requires consideration of relevant evidence. In trial of an election petition, such issue can be thrashed out. 4. Considering the limited scope of Article 226 and Article 227 of the Constitution, I am of the opinion that the present petitions are not maintainable and the only remedy available to the petitioners is to file the election petition after the elections are over. Petitions are accordingly disposed of. All questions are kept open. [V.R. KINGAONKAR] JUDGE NPJ/wp6389-2010 ( 5 )