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FARAD CONTINUATION SHEET NO.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD

WRIT PETITION NO.999/2012 Hajra Begum Mirza Kausar Baig V/s The State & others.

_______________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | Shri Pradeep Deshmukh, Advocate h/f Shri H.A. Joshi, Advocate for petitioner. Smt.A.V. Gondhalekar, AGP for respondent nos.1 & 2. Shri S.T. Shelke, Advocate for respondent no.3. CORAM: B.R. GAVAI & SUNIL P. DESHMUKH, JJ. Date: 30.01.2012 Heard learned counsel for the

respective parties. The petition has been filed basically with a prayer for quashing the order dated 24.1.2012 passed by the Returning Officer rejecting the nomination paper of the

petitioner against a reserved seat. The petitioner has also challenged the validity of the circular dated 6.8.2009 issued by the Election Commission. An oral prayer

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is made by the learned counsel for the petitioner to challenge the validity of Section 12-A of the Maharashtra Zilla Parishads and Panchayat Samitis Amendment Act, 2006. Insofar as the validity of the circular is concerned, Shri Pradeep Deshmukh, the learned counsel for the petitioner, submits that the said circular gives un-channalised, unguided and un-briddled powers on the authorities to decide the issue regarding grant of validity within a particular period. It is, therefore, submitted that the very nature of power gives an authority to pick and choose and act in an arbitrary manner and, therefore, the said circular is violative of Article 14 of the Constitution of India. Insofar as challenge to validity of Section 12-A of the Act is concerned, the learned counsel for the petitioner submits that the said provision, which mandates the validity certificate to be submitted within a prescribed period is in the nature of asking a candidate to do a thing, which is beyond his

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control and, therefore, would be hit by the principle of "doctrine of impossibility". Insofar as the challenge to the validity of the circular is concerned relating to present elections, the issue would be only of academic interest inasmuch as the last date for withdrawal of the nomination papers is today itself. By now it is a settled principle of law that the Courts should refrain themselves from entering into only academic issues. Insofar as the validity to Section 12-A of the Act is concerned, by now it is also equally settled principle of law that right to contest election is neither a Constitutional nor a fundamental right, but is purely a statutory right and would be governed by what is provided in a statute concerned. No person has a vested right to contest an election. In any case, the provision, which requires a caste certificate and validity certificate to be submitted along with the nomination papers, is made with a view to ensure that only such candidates, who have been found to be

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belonging to that particular category, after verification by the competent committees, contest the elections from the said reserved categories. In that view of the matter, we do not find any substance in the challenge to the validity of the said section. Insofar as main prayer in the petition is concerned, which directs the petitioner to be treated as validly nominated candidate from a reserved category, if any such relief is granted at this stage, it would amount to stalling the entire election process and as such would not be permissible in view of the law laid down by the Apex Court in the case of Election Commission of India V/s Ashok Kumar reported in (2000) 8 SCC 216. The petition is, therefore, rejected. In any case, a statutory appeal is provided against rejection of a nomination paper. We make it clear that the aforesaid observations would not come in the way of the petitioner or any such equally

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circumstanced candidate in adjudicating their claims on their own merits.

(Sunil P. Deshmukh, J.)

Dt/- 30.01.2012 ndk/c3011234

(B.R. Gavai, J.)