Skip to content


Shivshankar Ramkrishna Kini Vs. Anna Bala Gawad - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 158 of 1965
Judge
Reported in(1965)67BOMLR378; 1965MhLJ68
AppellantShivshankar Ramkrishna Kini
RespondentAnna Bala Gawad
Excerpt:
bombay village panchayats rules, 1959. rules 8, 7-nomination -paper presented through representative of candidate-authority authorising representative to present nomination paper not produced along with nomination paper-validity of nomination paper.;under rule 8(1) of the bombay village panchayats election rules, 1959, in cases in which a nomination paper is not presented personally by the candidate, the requirements of the rule will be complied with, if the authority authorising the representative to present the nomination paper on behalf of the candidate is given in writing before the nomination paper is presented, and it is immaterial whether such authority is produced or not at the time when the nomination paper is presented. it must, however, be produced before the nominations are..........authority in writing which is required by rule 8 must be produced at the time when the nomination paper is presented. mr. rane, who appears on behalf of respondents nos. 3 and 4, has, on the other hand, contended that rule 8 does not require that the authority to present the nomination paper must be produced at the time when the nomination paper is presented and that consequently the view taken by the mamlatdar is. correct. in order to decide which one of these views is correct it is necessary to refer to the relevant provisions of the rules.3. sub-rule (1) of rule 7 states that the mamlatdar shall appoint the date, the hours and place or places for the following stages of an election, namely, (i) the nomination of candidates, (ii) the scrutiny of nominations, (iii) the recording of.....
Judgment:

H.K. Chainani, C.J.

1. The petitioner was one of the candidates at the election which was to be held for electing members of the Gram Panchayat of Nirmal in Bassein Taluka from Ward No. 3-C. Under Rule 7 of the Bombay Village Panchayats Election Rules, 1959, the Mamlatdar had fixed the time between 11 a.m. and 3 p.m. on January 4, 1965, for filing nomination, papers. Respondents Nos. 1 and 2 also filed their nomination papers, but these were not presented by them personally but through their agent. The agent did not have with him the authority in writing authorising him to present the nomination papers at the time when these were presented. This authority was produced by him on the same day at 5.45 p.m. after the time for presenting nomination papers had expired. At the time of scrutiny of nominations, which was held on the following day, the Returning Officer rejected the nomination papers of respondents Nos. 1 and 2 on the ground that the authority authorising their agent to present the nomination papers had not been produced within the time prescribed for filing the nominations. Against the order made by him respondents Nos. 1 and 2 appealed to the Mamlatdar. The Mamlatdar took the view that it was not necessary to produce the authority along with the nomination papers and that since the authority had been produced subsequently the agent must be held to have been authorised in writing to present the nomination paper as required by Rule 8. The Mamlatdar, therefore, directed that the nominations of respondents Nos. 1 and 2 should be accepted. That order is being challenged in the present application.

2. Mr. Limaye, the learned advocate for the petitioner, has contended that the view taken by the Mamlatdar is erroneous. He has argued that the authority in writing which is required by Rule 8 must be produced at the time when the nomination paper is presented. Mr. Rane, who appears on behalf of respondents Nos. 3 and 4, has, on the other hand, contended that Rule 8 does not require that the authority to present the nomination paper must be produced at the time when the nomination paper is presented and that consequently the view taken by the Mamlatdar is. correct. In order to decide which one of these views is correct it is necessary to refer to the relevant provisions of the rules.

3. Sub-rule (1) of Rule 7 states that the Mamlatdar shall appoint the date, the hours and place or places for the following stages of an election, namely, (i) the nomination of candidates, (ii) the scrutiny of nominations, (iii) the recording of votes and (iv) the counting of votes. The date and the hours for the nomination of candidates are, therefore, fixed by the Mamlatdar under this rule. Sub-rule (3) of Rule 7 states that the dates, hours and place or places appointed under Sub-rule (i) shall not be changed except with the sanction of the Collector, unless there is not sufficient time for obtaining the previous sanction of the Collector to such change. Sub-rule (1) of Rule 8 provides that on the day appointed for the nomination of candidates, and during the hours appointed by the Mamlatdar under Rule 7 in this behalf, each candidate shall make an application in writing in Form A signed by him and present it either in person or through a representative authorised in writing in this behalf by such candidate to the Returning Officer signifying his willingness to serve as a member of the Panchayat. This rule, therefore, requires that the nomination paper shall be presented by the candidate personally or through a representative authorised in writing in this behalf by the candidate. The rule gives an option to the candidate. He may present the nomination paper personally or he may present it through another person whom he has authorised in writing in this behalf. The rule does not require that where a candidate does not present a nomination paper personally but through another person, the authority authorising that person to present the nomination paper must also be produced along with the nomination paper. All that is required by the rule is that the person who presents the nomination paper must possess an authority in writing from the candidate authorising him to do so. The authority must, therefore, be in existence before the nomination paper is presented. It cannot be given after the nomination paper is presented, because, in that case, the nomination paper cannot be said to have been presented by a person who at that time had the authority to present such nomination paper. If, however, the authority in writing is given before the nomination paper is presented, then the mere fact that it is not produced along with the nomination paper will not make the nomination paper invalid. In eases in which, therefore, a nomination paper is not presented personally by the candidate, the requirements of the rule will be complied with, if the authority authorising the representative to present the nomination paper on behalf of the candidate is given in writing' before the nomination paper is presented and it is immaterial whether such authority is produced or not at the time when the nomination paper is presented. It must, however, be produced before the nominations are scrutinised so as to enable the returning officer to decide whether the nomination paper was presented properly. The question whether the representative had' been given the authority before the nomination paper was presented will have to be decided in each ease on the facts of that case.

4. In the present case, the authority authorising the agent of respondents Nos. 1 and 2 to present the nomination papers was produced on the same day at 5.45 p.m. It is, however, not clear from the papers whether this authority was given before or after the nomination papers were presented. The Mamlatdar has not recorded a finding on this question. Since, however, the Mamlatdar has already accepted the nominations of respondents Nos. 1 and 2 and since we do not think that it would be desirable to postpone the election for a further period, we have decided not to remand the matter to the Mamlatdar for an inquiry on the above point. If it is the ease of the petitioner that the agent, who had presented the nomination papers of respondents Nos. 1 and 2, did not possess the requisite authority at the time when these nomination papers were presented, it will be open to him to file an election petition, if so advised, after the election has been held.

5. Rule discharged. No order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //