This judgment holds that a nominee cannot be disqualified merely because her husband is alleged to have encroached on public land, as the statutory provision targets the individual intending to be a member.
Impugned order rejecting nomination paper was set aside; Returning Officer directed to accept the nomination.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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W.P.No.10159/12
FARAD CONTINUATION SHEET NO.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO.10159 OF 2012
Parubai Ankush Rathod Vs. The State Election Commission and others.
Office Notes, Office
Memoranda of Coram,
appearances, Court's
orders or directions
andRegistrar's
orders.
Court's or Judge's orders
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.
CORAM : S.V.GANGAPURWALA,J.
Date : 08.12.2012.
PER COURT :
the post of Member of Grampanchayat from Ward No.3 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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W.P.No.10159/12
survey states that the petitioner has encroached. The nomination paper could not have been rejected on the said ground.
"Dagadu Maruti Jadhav Vs. Narendrapal Jaswantpal Barara"
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W.P.No.10159/12
reported in 1985 Bombay Cases Reported 399.
case of "Smt.Yallubai Maruti Kamble Vs. State of Maharashtra
and others" reported in 2012 (11) LJSOFT 18, has held as under :
"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.10159/12
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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W.P.No.10159/12
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.
(S.V.GANGAPURWALA,J.)
Dt.08.12.2012. asp/office/wp10159.12
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W.P.No.10159/12
3 issues framed by the court
Whether rejection of nomination is correct where notice alleges husband's encroachment without imputing it to the petitioner.
Whether encroachment by one spouse residing jointly with another attracts disqualification under the relevant election statute.
Whether the impugned order rejecting the nomination paper on ground of alleged encroachment by the husband is maintainable.
Colour shows how this judgement treated each authority
Dagadu Maruti Jadhav Vs. Narendrapal Jaswantpal BararaExplained¶22
1985 Bombay Cases Reported 399
Smt.Yallubai Maruti Kamble Vs. State of Maharashtra and othersDistinguished¶29
2012 (11) LJSOFT 18
1 provisions across 1 enactments
Parubai Ankush Rathod
The State Election Commission
S.V.Gangapurwala
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court