Dnyaneshwar Sahadev Sawant v. Mr. Sanjay Sarvade, Returning Officer & Ors.

Mr. Sanjay Sarvade, Returning Officer, & Ors. ...Respondents Mr. Pankaj Kawli with Mr. Ajay Khaire i/ by The Law Point for the Petitioner Mr. M.I. Patel, A.G.P., for Respondent Nos. 1 and 3 Mr. Imran Shaikh i/by Mr. S.B. Shetye for Respondent No. 2 CORAM: A.M. KHANWILKAR AND P.D. KODE, JJ. DATE: FEBRUARY 4, 2012 (In Chambers) P.C.:- The matter is produced in Chambers before us at 4.30 p.m.

#2. This Bench has been constituted to hear this matter, in view of the extreme urgency pointed out by the counsel for the petitioner. 2 338212

#3. We permit the petitioner to lodge this petition after the specified hours. The office shall accept this petition.

#4. The relief claimed in this petition is, essentially, to direct the Returning Officer to treat the nomination form filed by the petitioner as valid and proper and to allot election symbol to the petitioner, so that the petitioner can contest the ensuing elections from Ward No. 70. The challenge is the petitioner’s nomination has been rejected after the last date of scrutiny. Secondly, no notice was given to the petitioner before recording rejection of nomination form by the Returning Officer.

#5. The petitioner was informed through some source that his nomination paper is likely to be rejected on the ground that the petitioner has defaulted in paying assessment in respect of some property owned and assessed within the Corporation limits. When the petitioner rushed to the Returning Officer to ascertain this position, he was informed that, from the record, it is noticed that the petitioner had not paid assessment in respect of property situated at Jogeshwari. On further probe about the details of the property, it came to the notice of the petitioner that the said property was sold by him in 1995, and he had no causal connection with the said property since then. Notwithstanding that, the petitioner 3 338212 immediately contacted the present owner of the said property, and asked him to deposit the outstanding dues. Be that as it may, in substance, it is submitted that the petitioner’s nomination could not have been rejected on this count, because the petitioner had never received notice under Section 16(ee) of the Mumbai Municipal Corporation Act, till now. On this basis, it is argued that the decision of the Returning Officer is palpably mala fide and must have been taken at the behest of someone, so as to ensure that a strong candidate, like the petitioner, is kept away from the election fray in respect of Ward No. 70.

#6. Having given our anxious consideration to the argument canvassed by the petitioner, and the preliminary objection raised by the counsel for the Election Commission, we have no hesitation in taking the view that all these grounds are available to the petitioner in the event he decides to file election dispute. Inasmuch as Section 33 contemplates that wrongful rejection of nomination form of a candidate is a ground for setting aside the election.

#7. As statutory remedy is available to the petitioner, we decline to exercise our Writ Jurisdiction. We have no manner of doubt that, if the petitioner were to resort to election dispute, all questions raised by the 4 338212 petitioner will have to be decided on the basis of evidence before the Court in the said proceedings on their own merits, in accordance with law. Suffice it to observe that, in view of the settled legal position, the question of exercising Writ Jurisdiction, at this stage of the election process, does not arise.

#8. Hence, this petition is dismissed, with liberty to the petitioner to pursue other remedy.

#9. We make it clear that no observation made in this order should be construed as any opinion of this Court, much less conclusive and binding opinion rendered on the contentious issues affecting the election dispute.

#10. This petition is, accordingly, disposed of. P.D. KODE, J. A.M. KHANWILKAR, J.