PARSOTTAMDAS NATHUBHAI BRAHMABHAT Vs. D S PATEL

JUDGEMENT

(1.) The petitioner in this special civil application has inter alia prayed for the issue of an appropriate writ or direction under Article 227 of the Constitution of India for quashing the notice issued by the Return- ing Officer opponent No. 1 for the general election to be held for the Mehsana Borough Municipality and further to require the Returning Officer to include the petitioners name in the list of candidates validly nominated for Ward No. 7 for the said election and to republish the said list.

(2.) The town of Mehsana is a Municipal Borough within the meaning of the relevant provisions of the Gujarat Municipalities Act 1963 (Gujarat Act No. 34 of 1964). The Collector of Mehsana the 2nd opponent by virtue of powers conferred upon him under rule 7(1) of the Gujarat Municipalities Election Rules 1964 (hereinafter referred to as the afore- said rules) issued a notice on 18th June 1965 fixing the various stages of the general election for the Municipal Borough of Mehsana. By this noti- fication the general election was notified to be held on the 12th of Septem- ber 1965. The dates for the nomination of the candidates for the said general municipal election were 18th and 19th of August 1965. 21st of August 1965 was fixed as the date for scrutiny of the nomination papers. 23 August 1965 was fixed as the last date for withdrawal of candidature under the said notice. 2nd of September 1965 was fixed under the said notice as the date for publishing the list of validly nominated candidates for the said general municipal election.

(3.) Opponent No. 1 was appointed the Returning Officer for the said general municipal election. The petitioner and opponents Nos. 3 to 10 were the candidates from Ward No 7 of Mehsana Municipal Borough for the ensuing general municipal election to be held as stated hereinabove on the 12th of September 1965. The petitioners name was included in the voters list of the said municipality at Serial No. 41 of Ward No. 7. However the petitioners age was shown to be 59 though as a matter of fact the petitioner is aged about 32. To be on the safe side two nomi- nation papers were filed nominating the petitioner as a candidate from Ward No. 7 at the said election. Both these nomination papers were filed on the 19th of August 1965 within the time prescribed. They were given serial Nos. 102 and 103 by the Returning Officer. In the nomination paper bearing Serial No. 102 the correct age i. e. 32 years was mentioned and in the other nomination paper bearing Serial No. 103 the petitioners age was shown as 59 years in consonance with the age shown in the voters list as mentioned above. Both these nomination papers were duly proposed and seconded Two separate deposits each of Rs. 100.00 as required were made with the Returning Officer. On the 21st of August 1965 the date fixed for scrutiny both the nomination papers of the peti- tioner were accepted by the Returning Officer. According to the petitioners as he was nominated as a candidate from Ward No. 7 under the said two nomination papers and both of them were accepted by the Returning Officer he was advised by the Returning Officer to withdraw one of the nomination papers in order to avoid unnecessary complication by dupli- cation. Thereupon the petitioner by his letter dated the 22nd August 1965 requested that he may be permitted to withdraw his nomination paper bearing Serial No. 103 in which his age was shown as 59. It is also averred that on that very day the petitioner personally presented him self before the Returning Officer and informed him that he may be permitted to withdraw the said nomination paper bearing Serial No 103. Thereafter the Returning Officer purporting to act under Rule 12(3) of the aforesaid rules issued a notice on the 23rd August 1965 declaring the names of all the candidates who had withdrawn their candidature from the ensuing general election. The petitioners name was not published in the said consolidated list containing the names of those who had with- drawn their candidature. On the 2nd of September 1965 the Returning Officer issued under his signature a list of validly nominated candidates at the said election purporting to act under Rule 14 of the aforesaid rules. In that list however the name of the petitioner was not mentioned and the names of opponents Nos. 3 to 10 only were placed in the said list as the validly nominated candidates from Ward No. 7. The petitioner has alleged that a day prior to the publication of the said list i. e. on the 1st of September 1965 he had heard rumours to the effect that his name was not going to be included in the said list to be issued on the next day and he was thoroughly surprised and confused on the next day when he did find that his name was not included in that list. On mak- ing oral enquiries from the Returning Officer as to why his name was not placed in that list inspite of the fact that he had merely withdrawn one nomination paper bearing Serial No. 103 and the nomination paper bear- ing Serial No. 102 was still there and which was accepted by him after scrutiny and as such he was entitled to be declared as a validly nominated candidate it is the case of the petitioner that at that time the 1st oppo- nent had informed the petitioner orally that as he had by his application dated 22nd August 1965 withdrawn one of his nomination papers he was deemed to have withdrawn his candidature at the election within the mean- ing of Rule 12 of the aforesaid Rules. The petitioner being dissatisfied with the explanation given by the Returning Officer requested that he be given an explanation in writing setting out reasons for the omission of his name from the said list. The 1st opponent however did not comply with the petitioners oral request. So he gave a written application on the 4th of September 1965 setting out the details of all the circumstances leading up to the withdrawal of the petitioners nomination form bearing Serial No. 103 and pressed for an explanation in writing from the oppo- nent No. 1. The first opponent by his letter dated the 4th of September 1965 informed the petitioner inter alia that by virtue of rule 10 sub-rule (5) of the aforesaid Rules when a candidate at a general municipal election filled in more than one nomination papers from the same Ward all the said nomination papers were required to be consolidated and kept together and further that all the said several nomination papers have to be treated not as separate but as a single nomination of the same candidate and therefore when he withdrew one of his nomination papers he was deemed to have withdrawn his candidature within the meaning of rule 12 and therefore the petitioners name was not included in the list of validly nominated candidates.