1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1240 OF 2010. Chindu Sitaram Sawsakle and others -: versus :- The Asstt. Registrar and others. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : MARCH 19, 2010. Heard finally by consent of Shri S.S. Khadse, learned counsel for petitioners, Shri Sonare, learned A.G.P. for respondent no.1 and Shri V. Kulsange, learned Counsel for respondent no.2. Learned A.G.P. for respondent no.1 as also learned counsel for respondent no.2 are seeking time to file reply affidavit, but as relevant records are available with them, their request is rejected and those records are taken into consideration. Contention of learned counsel for petitioners is, challenge in present petition is restricted to rejection of nomination paper from constituency disclosed in paragraph no.4 thereof. He contends that along with the nomination paper, the candidate was supposed to submit a declaration 2 in prescribed proforma and thereby to state whether any child is born to him after 13.09.2002. The declaration was accordingly furnished by all the petitioners and there was no objection raised by any person to their nomination papers. No child is born to any of the petitioners after 13.09.2002 and hence, in accordance with law they are eligible to contest the election. Rejection of their nomination papers by respondent no.2 Returning Officer is unsustainable. The order passed by the Appellate Authority rejecting their appeals therefore is also without any merit. Learned A.G.P. as also Shri Kulsange, learned counsel appearing for respective respondents rely upon the relevant records. They urge that no documents were produced by any of the petitioners to show that after 13.09.2002 no child is born to them. In some matters affidavit that no such issue is born to them after cut off date has been filed for the first time, after the date of scrutiny. In relation to petitioner no.5 it is stated that his nomination paper is rejected also on the ground that it was not proposed by any body. With the assistance of respective counsel I have perused the papers. Nomination form has been duly filled in by all petitioners. The declaration which forms part of nomination paper is also signed and submitted by them along with nomination paper. At the time of scrutiny the statement in declaration was before respondent no.2 and as per that declaration petitioners have disclosed the number of children to them on the date of nomination paper and they also stated that no child is born to them after 13.09.2002. Law does not contemplate filing of any affidavits or any birth 3 certificates for those children by petitioners. The nomination paper is filed by petitioners were not objected to by rivals. In this situation, rejection of nomination papers of petitioners no.1 to 4 and of petitioner no.6 by respondents cannot be sustained. If respondents wanted petitioner to substantiate their contention by producing any evidence, the petitioners ought to have been informed well in advance that they have to submit birth certificate of their children in support of the statement made in declaration. Similarly, if any affidavit was expected from petitioners, they ought to have been informed in advance. For not doing some thing which is not in contemplation, the nomination papers of these petitioners could not have been rejected. The nomination paper of petitioner no.5 has been rejected on additional ground i.e. there was no proposer. Learned counsel appearing for petitioners has tried to contend that, that error was technical and could have been rectified at the stage of scrutiny itself. However, there is no such ground and the fact remains that error has not been rectified at the time of scrutiny. Hence, I do not find any substance in the said contention. With the result, the action of rejection of nomination paper of petitioner no.5 Bhonu Laxaman Tekam cannot be interfered with at this stage. However, nomination papers of petitioner nos. 1 to 4 and of petitioner no.6 deserve to be accepted. The impugned orders of rejection of their nomination papers are therefore quashed and set aside. Respondent no.2 is directed to accept their nomination papers and to allot symbols to them and to include their names in the ballot papers for the purpose of election which 4 is now scheduled on 28.03.2010. Writ Petition is thus partly allowed with no order as to cost. Certified copy expedited. JUDGE Rgd.