SUDHAKER VITTHAL MISAL Vs. STATE OF MAHARASTRA

JUDGEMENT

(1.) THE writ petition was filed on 1-10-2007 by petitioner feeling aggrieved by actions of respondent nos. 2 and 3. Election of village panchayat for village-Khokarmoha, Tq.-Shirur (Kasar), Dist-Beed was scheduled to go for polls on 7-10-2007. The writ petitioner filed a nomination for contesting a seat from ward no. 1 as a candidate from general category. It is said that although he desired to contest election as a candidate from OBC category and for a seat reserved for OBC category, he filed the nomination as a general category candidate, because he did not possess acknowledgment from caste scrutiny committee regarding petitioner having tendered his caste claim for verification. As the petitioner got the acknowledgment on 22-9-2007, he filed another nomination as a candidate belonging to OBC category for another seat from the same ward no. 1 reserved for OBC. As per election programme, 24-9-2007- 11. 00 a. m. was the date and time fixed for commencement of scrutiny of nomination papers. Time for withdrawal was 11 a. m. to 3 p. m. on Wednesday 26-9-2007. It is the claim of the petitioner that on 24-9-2007, he submitted an application (Exh. C) (paper book page 22) to the Election Officer disclosing therein his intentions to withdraw his nomination as a candidate of general category from ward no. l i. e. he prayed for cancellation of his nomination papers tendered by him to the election Officer on 21-9-2007. In this application, he has disclosed that now he was armed with a receipt from caste scrutiny committee and, therefore, he would like to contest the election from ward no. 1 for a seat reserved for OBC category. There were 3 seats from ward no. l -general, women and OBC. After the scrutiny of papers on 24-9-2007, the petitioner's nomination from general category was shown to be valid nomination and his nomination from obc category was held invalid. This was done on the basis of instructions issued by the State election Commission by its circular/letter dated 7-5-2007. (To the purport of the said letter, we shall refer during the course of discussion of reasons ). It appears that subsequently his nomination from general category was treated as withdrawn and consequently the petitioner was not in the fray as a candidate on the ballot paper either on a seat for general category or for the seat reserved for OBC. Feeling aggrieved by this action, which according to learned counsel of the petitioner, was learnt by his client on 26-9-2007, the petitioner approached this Court by writ petition filed on 1-10-2007, praying for directions to respondent nos. 2 and 3 to accept the nomination form of the petitioner for the seat reserved for OBC category in ward no. 1 and to include his name in the list of contesting candidates for that seat.

(2.) IT appears that at the request of the petitioner on 1-10-2007, circulation was granted for the same day afternoon session. In the afternoon session, one of the Judges on the bench earlier recorded "not before me". Consequently, the matter was referred to the hon'ble the Chief Justice of this High Court and order dated 4-10-2007 constituting this bench as a Special Bench during the present sitting was received by this office on 5-10-2007. When mentioned before us for circulation by the learned counsel on 5-10-2007, we allowed circulation for 6-10-2007. On 6-10-2007, although AGP for respondent no. l and advocate Shri. S. T. Shelke for respondent nos. 2 and 3 could be available, respondent No. 4 could not be available being a private individual. Although election was scheduled to be held on 7-10-2007, the factual details disclosed to us revealed that respondent No. 4 alone was the candidate in fray for the seat reserved for OBC category from ward no. l of Village-Khokarmoha, if the rejection of nomination of the petitioner was to be upheld. Naturally, respondent No. 4 could be seen to be the person likely to be affected adversely in case of success of the petitioner or even if some interim relief, was granted. We were not, therefore, inclined to issue directions to respondent Nos. 2 and 3 of not declaring the result of election so far as this particular seat is concerned, without affording an opportunity to respondent No. 4. Notice was issued to respondent No. 4 with specific directions to Tahsildar, Shirur (Kasar) to ensure the service on respondent No. 4 latest by 7-10-2007 evening so as to enable respondent No. 4 to remain present on 8-10-2007. The matter was placed first on Board on that day. On 8-10-2007, respondent No. 4 appeared through advocate Shri. Sanjay Mundhe, although at that time Advocate did not have Vakalatnama signed by respondent No. 4 with him, which he filed today in the Court. At the request of Advocate mundhe, the matter was adjourned for 9-10-2007. Consequently, we directed ad-interim relief in terms of prayer clause (B-3) added to the petition by amendment on 6-10-2007 i. e. pending disposal of this writ petition, respondent nos. 2 and 3 should not declare the election result of this particular seat of OBC category from ward no. l of grampanchayat, Khokarmoha, tq.-Shirur (Kasar), Dist.-Beed. By amendment to the petition on 6-10-2007, the petitioner has challenged the circular dated 7-5-2007 issued by the State Election commission as arbitrary, illegal, unreasonable, not having any statutory force and violative of article 14 of the Constitution. Consequently, declaration to that effect is sought by amended prayer clauses (B-1) and (B-2 ). As stated earlier, prayer clause (B-3) was for interim relief staying the declaration of election of respondent no. 4 as unopposed elected from the said seat reserved for OBC category from ward no. 1.

(3.) FOR the purpose of assailing the circular dated 7-5-2007 (paper boom page 24)issued by State Election Commission, Advocate shri. Thombre for the petitioner has placed reliance upon Rule 8 of Bombay Village panchayats Election Rules, 1959 (for the sake of brevity the Rules ). We need not reproduce the entire rule, but we may reproduce only sub-rule (3), which was relied upon by Advocate shri. Thombre with emphasis.