BATU LALU Vs. P S MALVANKAR
LAWS(BOM)-1962-7-6
HIGH COURT OF BOMBAY
Decided on July 11,1962

BATU LALU Appellant
VERSUS
P.S.MALVANKAR Respondents

JUDGEMENT

- (1.)THIS petition is by one of the candidates for election to the Zilla Parishad from a constituency called Dharni Constituency, in which a seat was reserved for Scheduled Tribes or Adim Jati. The petitioner is a person belonging to the Korku caste and a member of a Scheduled Tribe or Adim Jati. An election programmer was drawn up by the Collector, Amravati, for holding elections to the Zilla Parishad in this constituency. This costituency is known as the Dharni Electoral Division in the Dharni Block in Amravati district. According to the election programme, the date for receiving nomination papers was 4th May 1962. Nomination papers were to be received by that date. The date of scrutiny was 7th May 1962, and the poll was to be taken if necessary, on 21-5-62. The petitioner was one of the candidates nominated, and so were the respondents 5, 6 and 7. The nomination of the petitioner by presenting a nomination paper was done in the following way. At 1. 50 p. m. one Surjya Mahating proposed the name of the petitioner as a candidate for this constituency by presenting the nomination paper. That paper was No. 9 and the date and hour of presentation of the paper is endorsed on it. It was presented on 3-5-1962. The same proposer, Surjya Mahating, filed another nomination paper on the dame day but at 3. 50 p. m. and the endorsement shows that it was numbered as 19. Another elector by name Ramlal Mangal, presented a nomination paper proposing the petitioner as a candidate on 3-5-62 at 1. 55 p. m. that paper bears serial No, 10. The same elector Ramlal presented another nomination paper prosposing the petitioner on the same date but at 3. 50 p. m. and this nomination paper bears serial No 18 as endorsed by the Returning Officer. The petitioner has filed certified copies of the nomination paper filed by Surjya Mahating and Ramlal Mangal. On the date of the scrutiny the Returning Officer rejected the nomination of the petitioner on the ground that each of the proposer, namely,. Ramlal and Surjya Mahating, had subscribed as proposer to more than one nomination paper. All the nomination papers proposing the petitioner as a candidate were therefore rejected. Apparently, the rejection is referable to R. 14 (2) of the rules framed by the State Government, called Maharashtra Zilla Parishad Election Rules, 1962.
(2.)AGAINST rejection of his nomination the petitioner filed an appeal as provided in R, 20 of the Election Rules to the District Judge Amravati. The appeal was heard on 11-5-62 and rejected on the same day. The District Judge took the view that inasmuch as each proposer had subscribed to more than one nomination paper, all the nomination papers were liable to be rejected under R. 19 (2) of the rules. There are two statements in the order of the learned District Judge which are factually inaccurate as now admitted between the parties. In paragraph 4 of the order the District Judge mentioned that all the nomination papers filed by the appellant (petitioner) were subscribed by one and the same person. This is obviously not correct. Two of them were subscribed by Ramlal and two others were subscribed by Surjya Mahating. Similarly it is also stated in the same paragraph that there is nothing on record to show that all the nomination papers were not filed by the appellant at the same time. this statement is also not correct in view of the endorsements indicating the hour when each of the nomination papers was presented before the Returning Officer. It appears that the learned Judge did not have the original nomination papers before him and must have accepted the statements made before him as correct.
(3.)THE learned District Judge took the view that the provisions of R. 14 (2) were mandatory and even though sub-rule (3) of R. 19 permitted a certain amount of discretion in the Returning Officer in the matter of rejection of nomination paper on the ground of irregularity in the paper, it could not be held that the petitioner was duly nominated because the subscription to more than one nomination paper by the same proposer invalidates each of those papers. The learned Judge also considered that the petitioner was not entitled to relief under sub-rule (4) of r. 19 because it could not be said that this was not a defect of a substantial character. These findings of the learned District Judge are challenged before us in this petition.


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