At, In the High Court of Bombay at Aurangabad
By, THE HONOURABLE MR. JUSTICE MANGESH S. PATIL
For the Petitioner: Dhananjay M. Shinde, Advocate. For the Respondents: R1 & R3, S.B. Pulkundwar, A.G.P., R2 & R4, A.B. Kadethankar, Standing Counsel.
Oral Judgment:1. Heard.2. Rule. The Rule is made returnable forthwith. With the consent of both the sides, the matter is heard finally at the stage of admission.3. The petitioner filed a nomination for election to the Grampanchayat, Mhalsapur, Taluka Sengaon, District Hingoli from Ward No.1. By the impugned order, the respondent – Returning Officer has rejected her nomination form on the ground that she had tendered passbook of bank account which was old one.4. Mr. D.M. Shinde, learned Advocate for the petitioner, referring to Rule 83 of the Conduct of Elections Rules, 1961 framed under the Representation of the Peoples Act, 1951. Section 77 of the Representation of the Peoples Act, 1951 and particularly the Circular dated 15.10.2013, issued by the Election Commission of India to the Chief Electoral Officers of all the States, submits that law does not require a new or fresh account to be opened. The impugned order, which insists for opening of fresh account is de hors the provisions of any law. The petitioner had very well tendered a passbook showing existence of an account in her name. The defect was also otherwise curable as contemplated under rule 11 of the Grampanchayat Election Rules. The Returning Officer ought to have notified her the objection and allowed to cure it. There would be only one candidate in the fray if the nomination of the petitioner is rejected. He would then submit that this Court in similar set of facts and circumstances, in the matter of Avinash Lobhaji Patole Vs. The State of Maharashtra and others; Writ Petition No.11923 of 2017, decided on 28.09.2017, had allowed the Writ Petition and permitted the petitioner therein to contest the election.5. Mr. Shinde, the learned Advocate would also submit that the petitioner at the time of scrutiny had opened a new account and was ready with the passbook for being tendered to the Returning Officer, which he refused to accept. This is a specific ground being raised in the petition. This conduct of the Returning Officer is inconsistent with the mandate of Rule 11 of the Grampanchayat Election Rules and the petition be allowed.6. Mr. A.B. Kadethankar, learned Advocate for the State Election Commission submits that no fault can be found with the impugned order. The petitioner was expected to open a fresh account if she wanted to file a nomination form. Even she was alive to this requirement and that is why even now she alleges that she was ready with passbook to demonstrate that she had opened new account. There is no record to show that she had, in fact, made an attempt to tender the passbook of the new account opened by her at the time the scrutiny was undertaken by the Returning Officer. The Returning Officer has taken a plausible view for not opening the new account by the petitioner.7. Mr. Kadethankar, learned Advocate also refers to the decisions in the case of Vinod Pandurang Bharsakade vs. Returning Officer, Akot and Anr.;2003 (4) Mh.L.J. 359 and Election Commission of India vs. Shivaji & Ors.; AIR 1988 SC 61 and submits that the election process is already underway. Today is the date for allotment of symbols. The clock cannot be set back and the petition be dismissed.8. True it is that this Court in the case of Avinash Lobhaji Patole (supra), in somewhat similar state-of-affairs, allowed the petitioner therein to contest the election by referring to the judgment of Division Bench of this Court in the case of Anant Janardan Patil vs. State of Maharashtra and others; 2002 (2) Mh.L.J. 238 and observing that there is no law requiring a candidate to open a fresh bank account. However, it is also pertinent to note that in that case, the petitioner had a bank account and proof thereof, which he had tendered before the Returning Officer. This is a peculiar fact regarding which there is no sufficient proof in the matter in hand. Though the petitioner is alleging that she had opened a new account and was even ready with the passbook to be tendered before the Returning Officer, there is no proof about it. She also alleges that
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the Returning Officer refused to accept it. It is a disputed fact which cannot be gone into in this matter. It is under these peculiar circumstances, I find no sufficient ground to cause any interference in the impugned order.9. Needless to state that the petitioner would be at liberty to avail of the appropriate remedy as is available to her in law at the appropriate stage.10. In the result, the Writ Petition is dismissed. The Rule is discharged.