Allowed

Parubai Ankush Rathod v. the State Election Commission and Ors.

Bombay HC8 Dec 2012WP/10158/2012

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the rejection of a petitioner's nomination for a Grampanchayat seat. The court held that disqualification under the relevant statute applies only if the candidate themselves encroaches, not merely if their spouse does, even if they reside together.

What did the court decide?

The impugned order rejecting the nomination was set aside and the Returning Officer directed to accept the nomination paper.

Parubai Ankush Rathod Vs the State Election Commission and Ors. — Election Law | Bombay HC (2012)

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W.P.No.10158/12

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 FARAD CONTINUATION SHEET NO.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 APPELLATE SIDE, BENCH AT AURANGABAD

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WRIT PETITION NO.10158 OF 2012

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Parubai Ankush Rathod Vs. The State Election Commission and others.

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Office Notes, Office
Memoranda of Coram,
appearances, Court's
orders or directions
andRegistrar's
orders.

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Court's or Judge's orders

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Mr.S.J.Salunke, advocate for the petitioner.
Mr.S.B.Pulkundwar, Asstt. Govt. Pleader for the State.
Mr.R.R.Imale, advocate for Respondent Nos.1 and 3.
Mr.A.N.Nagargoje, advocate for Respondent No.4.

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 CORAM : S.V.GANGAPURWALA,J.

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 Date : 08.12.2012.
PER COURT :

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Heard.

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Rule. Rule made returnable forthwith.

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The Nomination of the petitioner to contest the election for

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the post of Member of Grampanchayat from Ward No.1 is rejected on the ground that notice is issued to the husband of the petitioner stating that the husband of the petitioner has made encroachment.

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Mr.Salunke, learned counsel submits that the notice which is relied by the Returning Officer states that the husband of the petitioner Ankush has put sand and Dabbar in an area of 100x100 ft. and thereby has encroached the said land. The said notice or

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W.P.No.10158/12

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survey states that the petitioner has encroached. The nomination paper could not have been rejected on the said ground.

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Mr.Imale, learned counsel supports the order and submits that the Returning Officer has rightly considered the said aspect. The petitioner and her husband reside together as is clear from the property tax register.

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Mr.Nagargoje, learned counsel for the Respondent No.4 opposes the petition and submits that petitioner and her husband are residing in the same premises. The Respondent No.4 had raised a specific objection that the petitioner has committed encroachment, still, the petitioner did not deny this fact. The petitioner did not file any say or affidavit denying these averments. The stage has proceeded further. Today is the last date for withdrawal of the nomination papers. The petitioner has an alternate remedy available, as such the Writ Petition may not be entertained. There is no provision to issue notice to the encroacher. The authority makes the survey and the said survey report is the conclusive proof of encroachment. The learned counsel further contends that all the candidates who have filled in nominations are necessary parties in the present petition and the petition deserves to fail on the ground of non-joinder of all necessary parties. The learned counsel relies on the judgment of the Division Bench of this Court in a case of

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"Dagadu Maruti Jadhav Vs. Narendrapal Jaswantpal Barara"

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W.P.No.10158/12

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reported in 1985 Bombay Cases Reported 399.

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With the assistance of the learned counsel I have gone through the order passed by the Returning Officer.

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The nomination paper of the petitioner is solely rejected on the ground that the husband of the petitioner Ankush has been issued notice dated 19.9.2011, alleging that the husband of the petitioner has committed encroachment and as such petitioner is disqualified U/s 14(j-3) of the Bombay Village Panchayats Act.

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I have also perused the said notice. The said notice states that the husband of the petitioner Ankush has placed sand and Dabbar on 100x100 ft. area and as such has committed encroachment. The notice nowhere states that the construction has been made on the said area and the petitioner and her husband are residing on the same. The learned Single Judge of his Court in a

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case of "Smt.Yallubai Maruti Kamble Vs. State of Maharashtra

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and others" reported in 2012 (11) LJSOFT 18, has held as under :

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"10. There is nothing in the Act by which the concept of family or joint residence could be imported as far as the subject disqualification is concerned. The said provision contemplates encroachment upon the Government land or public property by a person, as in this case, who is a Member of the Panchayat. Therefore, the encroachment must be by the person who is a member and not any third party.

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W.P.No.10158/12

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11. Therefore, on a plain reading of this provision what would be apparent is that it is the person who is intending to be a member of panchayat or who is a member cannot continue if that person has encroached upon the Government land or public property. As far as this aspect is concerned, the Legislature has not imported anything by which one can presume that if the encroachment is made by the spouse, relative of the member of grampanchayat, residing jointly with the Member, on the public property, then together with the members of such family, he is also deemed to be guilty of the act of encroachment. If the act is committed by somebody other than the elected person and, therefore, he incurs or invites disqualification, is not a conclusion which can be drawn or arrived at on a plain reading of section 14(1)(j3)."

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In light of the above, as there is nothing on record to prima facie show that the petitioner has made any encroachment nor any encroachment is alleged by any authority against the petitioner, it was an error on the part of the Returning Officer in rejecting the nomination paper.

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The last date of withdrawal is today. By entertaining the present petition and allowing it, the election programme is not being altered and entertaining the petition would sub-serve the cause of substantial justice. Reliance placed by Mr.Nagargoje, learned counsel in a case of "Dagadu Maruti Jadhav Vs.

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W.P.No.10158/12

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Narendrapal Jaswantpal Barara" referred supra may not be relevant as the said judgment was interpreting Rule 15(5) of the Maharashtra Municipalities Election Rules, 1966. In the present Act, with which we are concerned, no such rule exist.

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In light of the above, the Writ Petition succeeds. The impugned order passed by the Returning Officer is set aside. The Returning Officer shall accept the nomination paper of the petitioner. Rule accordingly made absolute.

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It is made clear that I have considered the matter on the basis of the order passed by the Returning Officer and the documents as existed at the time of passing the order. The present judgment would not preclude a party from raising the ground of encroachment against the petitioner in any proceedings filed including election Petition. No costs.

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(S.V.GANGAPURWALA,J.)

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Dt.08.12.2012. asp/office/wp10158.12

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W.P.No.10158/12

Parubai Ankush Rathod v. the State Election Commission and Ors.

Case brief

What is this about?

What did the court decide?

Parubai Ankush Rathod v. the State Election Commission and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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