1998(2) ALL MR 546
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
V.R. DATAR AND N.P. CHAPALGAONKAR, JJ.
Bhosale Deepak Manikrao And Ors. Vs. The State Of Maharashtra And Ors.
Writ Petition No.4399 of 1997,Writ Petition No.4400 of 1997,Writ Petition No.4414 of 1997,Writ Petition No.4417 of 1997,Writ Petition No.4508 of 1997,Writ Petition No.4539 of 1997
21st October, 1997
Petitioner Counsel: Shri V. D. HON, Shri R. B. RAGHUWANSHI, Shri N. K. KAKADE, Shri S. K. SHINDE, Shri D. R. BHADEKAR, Shri V. G. SAKOLKAR
Respondent Counsel: Shri V. D. SAPKAL, A.G.P., Shri N. H. PATIL, Shri S. B. DESHMUKH & Shri V. P. LATANGE, Shri KISHOR GADHAVE PATIL, A.G.P., Shri P. G. NAGODE, Shri R. S. DESHMUKH, A.G.P., Shri S. K. KADAM, A.G.P., Shri S. T. SHELKE, Shri V. B. GHATGE, A.G.P.
(A) Constitution of India, Art.243(O) - Bombay Village Panchayats Act (1958), S.15 and 15A - Panchayat elections - Rejection of nomination papers - Legality or propriety can be challenged by election petition under Act - Writ petition is not maintainable in view of constitutional and statutory bar.
Writ petitions challenging legality or propriety of rejection of nomination papers cannot be entertained in view of constitutional bar under Art.243(o) and statutory bar under S.15A of the Act. [Para 15,20]
Section 15 gives wide powers to the trial Judge to decide the validity of an election and does not specify any grounds. Therefore, qualification or the disqualification of a candidate elected, improper rejection or acceptance of nomination paper, improper counting or commission of corrupt practice can be a ground for invalidating the result of an election. Sub-section (7) of Section 15 added to the statute by amendment in the year, 1970 prohibits setting aside of an election only on the ground of an error made by the Officer charged with carrying out the rules. Therefore, if there is an error which does not go to the root of the case and is only an infraction of a rule, that by itself will not entitle anybody to challenge the election and get it set aside on that count. If any of the provisions of the rule which does not relate to the qualification of a candidate or has not materially affected the result of the case, can be no ground for setting aside the election. Therefore, the legislature has specifically directed that the Judge shall not set aside the election on such a ground, if irregularity and informality is not corruptly caused. When the Returning Officer accepts the nomination paper or rejects the nomination paper, he adjudicates entitlement of a person to contest the election. This is a quasi-judicial function. Infraction of the rule of error committed by the Returning Officer referred to in sub-section (7) is not a wrong decision of the Returning Officer in respect of acceptance or rejection of nomination paper. Therefore, it could be held that sub-section (7) of Section 15 does not prevent the Judge from considering the improper rejection or acceptance of a nomination paper as a ground for setting aside the election of a returned candidate. [Para 14]
(B) Bombay Village Panchayats Act (1958), S.15 - Election to panchayats - Rejection of nomination paper on ground that instructions regarding filing of nomination paper were not followed - Such instructions cannot be governed by circulars or instructions which are for internal use only - Election commission cannot make use of instructions which are not made known to candidates. (Para 18)
AIR 1952 SC 64 [Para 7]
AIR 1978 SC 851 [Para 8]
1964 Mh.L.J. Note 65 [Para 12]
1969 Mh.L.J. 759 [Para 12]
1977 Mh.L.J. 673 [Para 13]
1996 (1) Mh.L.J. 478 [Para 13]
AIR 1990 SC 1305 [Para 13]
N. P. CHAPALGAONKER, J. :- Writ Petition No.4399 of 1997 challenges the rejection of nomination papers of 63 petitioners in an election to Kashti Village Panchayat in Shrigonda taluka of Ahmednagar District. These nomination papers are rejected merely on the ground that on the back side of the nomination papers, these petitioners have indicated their choice for election symbol.
2. In Writ Petition No.4508 of 1997, the petitioner filed her nomination paper for the General Seat (unreserved seat). However, in the nomination paper filed by her for the election to Markand Village Panchayat, district Nanded, though she did write 'Sarwasadharan' (General), below it word 'Stri' was written. The Returning Officer held that there is no seat reserved for woman general in this ward and there-fore, her nomination paper was rejected.
3. In Writ Petition No.4400/1997 the nomination papers of the petitioners to the election of Village Panchayat Ranala in Dhule district were rejected on the ground that the petitioners were serving in some private Educational Society and had not taken proper permission of the society.
4. In Writ Petition No.4539/1997 the nomination paper of the petitioner for the election to Chawan Hipperga Gram Panchayat was rejected on the ground that original caste certificate was presented at the time of scrutiny (meaning thereby that it was not annexed to the nomination paper).
5. In Writ Petition No.4414 of 1997 the nomination paper of the petitioner for the election of Village Panchayat Morane (Nakane) of district Dhule was rejected on the ground that the petitioner's name is included in the Voters' list of Dhule Municipal Council and he did not produce any evidence about the steps taken for deleting his name from the electoral roll of Dhule Municipal Council.
6. The petitioners in these writ petitions contended before us that the rejection of the nomination papers is without any valid reason and prayed for a mandamus directing the Returning Officer to accept the nomination papers and permit the petitioners to contest the election for which they had filed their nominations.
7. The elections impugned in these petitions are governed by the Bombay Village Panchayats Act, 1958, and the Rules made thereunder. Section 15 of the said Act provides for a remedy by way of an election petition to challenge the validity of any election of a member of panchayat, by bringing it in question by any candidate or any voter at such election, within fifteen days after the date of declaration of result of the election before Civil Judge. Right from Punnu Swami's case (AIR 1952 SC 64) now it is settled that acceptance or rejection of nomination paper is a stage in the election. Section 15-A inserted by the Maharashtra Act No.36/1993 creates a bar to interference by Courts in electoral mattes. It reads, as under:
"15A. No election to any Panchayat shall be called in question except in accordance with the provisions of Section 15; and no court other than the Judge referred to in that section shall entertain any dispute in respect of such election."
The specific provision appears to be in conformity with the Constitutional bar contained in Article 243(O). Clause (b) of the said Article reads that no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. Therefore, the Constitutional and the statutory bar quoted above would prohibit any interference in the election and any step in the election will have to be challenged by way of the remedy provided for by the Act and in no other manner.
8. Shri R. B. Raghuwanshi, learned Counsel appearing in one of the petitions for the petitioners contended before us the this Court in exercise of its inherent jurisdiction under Article 226 and 227 of the Constitution of India, can correct the mistake of the Returning Officer and permit the election process to proceed, so that unnecessary waste of public money and time can be saved. He also contended that the powers bestowed upon the State Election Commission under Article 243K are wide enough so as to cover the correction of the mistakes impugned in these writ petitions. According to him, the State Election Commission may, in its discretion, reconsider the order of the Returning Officer and accept the nomination papers, if it finds that it was wrongly rejected. We are afraid, that this submission will have to be rejected. No doubt, the Election Commission have been entrusted with wide power for superintendence, direction and control in respect of conduct of elections. The Election Commission may issue any directions for this purpose but, the Election Commission has no power to assume the functions of any statutory authority in the process of the election and if the election statute provides that any step in the election will have to be challenged in a particular manner, then the Election Commission cannot interfere and assume those powers to correct the alleged mistake. Supreme Court in the case of Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others (AIR 1978 SC 851) specifically pointed out the limitations on the powers vested in the Election Commission:
"Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission, shall act in conformity with, not in violation of, such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of not divorced from, pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action is a most important area of the constitutional order, viz., elections."
9. Therefore, the powers of Election Commission cannot be exercised in violation of specific statutory provisions. When the statute or rules made thereunder are silent, the Election Commission is free to issue directions. In the instant case, we find that the election, which includes the step in the elections, will have to be challenged by filing election petition under Section 15 of the Bombay Village Panchayats Act, 1958 and Section 15A specifically bars the interference in any other proceedings. This, read with Constitutional bar under Article 243(O), negatives the contentions raised by the Counsel for the petitioners.
10. Shri V. D. Hon, learned Counsel for the petitioners raised an apprehension that sub-section (7) of Section 15 would disentitle the petitioners from assailing the rejection of their nomination papers. Since the nomination papers were rejected on the ground not available under the Rules or the Act, this would be an error made by the Returning Officer and, therefore, the election cannot be possibly challenged on the ground of irregularity or informality not corruptly caused and the Judge cannot set aside the election on such ground. Sub Section (7) of Section 15 of the Bombay Village Panchayats Act, 1958 is reproduced below for ready reference:
"15(7): If the validity of any election is brought in question only on the ground of an error made by the Officer charged with carrying out the rules made in this behalf under Section 176 read with sub-section (2) of Section 10 and Section 11, or of an irregularity or informality not corruptly caused, the Judge shall not set aside the election."
11. Section 15 of the Bombay Village Panchayats Act, 1958, unlike many other statutes, does not specifically limit the grounds on which the validity of an election can be challenged. Some election statutes do provide that an election can be challenged on the grounds mentioned therein. But, such is not the case with the Bombay Village Panchayats Act. It was apprehended by the learned Counsel that sub-section (5) of Section 15 of the said Act indicates that unless corrupt practice is alleged and proved, no election of the village panchayat can be challenged. It was also contended that except on the ground of corrupt practice or error in the counting, the Judge referred to in the said section, shall not have jurisdiction to set aside the election.
12. Shri Deshmukh, learned Counsel appearing on behalf of the intervenors in one of the writ petitions placed reliance on a judgment of Division Bench of this Court in Special Civil Application No.345/62 - Radhabai Bajranglal Jaiswal Vs. State of Maharashtra (1964 Mh.L.J. Note 65) and contended that the grounds for challenging the election are not restricted to only those specified in clause (a) and (b) of Section 15(5). He further relied on a judgment of the learned Single Judge of this Court in Bhimaji Laxman and others Vs. C. N. Gite and others (1969 Mh.L.J. 759) wherein it was held that though Rule 12(4) (as it then was) of the Bombay Village Panchayats Election Rules, 1959, declares that Mamlatdar's order is final in an appeal against rejection of nomination paper, the order can be challenged in election petition filed under Section 15 of the Act.
13. We find that the question whether the acceptance or rejection of the nomination papers can be gone into in an inquiry under Section 15 of the said Act, by the Judge hearing the election petition, is no more res integra. In the case of Hanifabi Vs. Kamal (1977 Mh.L.J. 673) the Division Bench of this Court has held that a candidate, whose nomination paper is rejected, still continues to be a candidate at an election and specially so, when under Section 15(1), Bombay Village Panchayats Act, improper rejection of nomination paper can be validly enquired into resulting in the setting aside of the election if the rejection is found to be improper. Same view is taken by the learned Single Judge of this Court in Rama Mukharu Wakhare Vs. Kashinath Antaram Gahane and others (1996(1) Mh.L.J. 478). It was contended before us by the learned Counsel for the petitioners, Shri Hon and Shri Raghuwanshi that the impact of sub-section (7) of Section 15 was not considered in any of these judgments and they apprehend that the Judge may take a view that because of sub-sec.(7) of Section 15, the election petition is not maintainable. Shri Raghuwanshi further relying on the judgment of Supreme Court in Raj Soni Vs. Air Officer in charge Administration (AIR 1990 SC 1305) laying down that when any authority is required to act in a particular manner under a statute, it has no option but to follow the statute, contended that sub-section (7) of Section 15 makes it imperative for the Judge to reject the challenge to the validity if there is an error of the Officer in complying the rules.
14. Sub-section (7) of Section 15 cannot be read in isolation. Section 15 itself gives wide powers to the trial Judge to decide the validity of an election and does not specify any grounds. Therefore, qualification or the disqualification of a candidate elected, improper rejection or acceptance of nomination paper, improper counting or commission of corrupt practice can be a ground for invalidating the result of an election. Sub-section (7) of Section 15 was added to the statute by amendment in the year, 1970. It prohibits setting aside of an election only on the ground of an error made by the Officer charged with carrying out the rules. Therefore, if there is an error which does not go to the root of the case and is only an infraction of a rule, that by itself will not entitle anybody to challenge the election and get it set aside on that count. If any of the provisions of the rule which does not relate to the qualification of a candidate or has not materially affected the result of the case, can be no ground for setting aside the election. Therefore, the legislature has specifically directed that the Judge shall not set aside the election on such a ground, if irregularity and informality is not corruptly caused. When the Returning Officer accepts the nomination paper or rejects the nomination paper, he adjudicates entitlement of a person to contest the election. This is a quasi-judicial function. Infraction of the rule or error committed by the Returning Officer referred to in sub-section (7) is not a wrong decision of the Returning Officer in respect of acceptance or rejection of nomination paper. We, therefore, hold that sub-section (7) of Section 15 does not prevent the Judge from considering the improper rejection or acceptance of a nomination paper as a ground for setting aside the election of a returned candidate. The apprehension expressed is without any foundation.
15. These writ petitions cannot be entertained and no effective relief can be granted to the petitioners in view of the constitutional bar under Article 243(O) and the statutory bar under Section 15A of the Act of 1958.
16. Before we part with these cases, we wish to point out that looking to the number of village panchayats which go simultaneously to the poll, large number of officers are required to be engaged and there being likelihood of errors which the Returning Officer may commit, because of the ignorance of the meaning of law, it is necessary that an appeal is provided by the legislature against the rejection or acceptance of the nomination paper. Even if, the nomination paper of a candidate who may be inconsequential in a contested election is rejected, the election of a candidate who had nothing to do with the error of the Returning Officer, is set aside in an election petition, and in cases where a candidate who was not qualified is likely to be elected and enjoy the office for a considerable time till the election petition is decided. There was a provision of appeal formerly under the Bombay Village Panchayats Election Rules but the provision of appeal has now been deleted. In the statutes governing Municipal Council election in Maharashtra, an appeal to District Judge against the rejection and acceptance of nomination paper has been provided. It is not that similar provision should be there in all statutes but, even in village panchayats elections if a remedy of an appeal is provided for, it is likely that the error may be corrected in time and this stitching in time may save nine. Appeal against rejection of nomination paper is justifiable on another ground also. If in an election to a seat or seats of village panchayat, all the nomination papers are wrongly rejected, the error is likely to go uncorrected since there would not be an election which may be challenged. It is a matter for the State Legislature to consider.
17. In writ petition No.4539/97 it was contended on behalf of the Election Commission that the State Election Commission has subsequently issued directions that in respect of seats reserved for a particular category, certificate of the candidate belonging to that category should be annexed to the nomination paper. The learned Counsel for the petitioners contended that this notification of the State Election Commission was not known to the petitioners and this has not formed part of the rules.
18. In writ petition No.4417 of 1997, the nomination paper to the election of Gram Panchayat Rahimpur, in Sangamner taluka of Ahmednagar district filed by the petitioner was rejected on the ground that a certificate of no dues from the Village Panchayat was not annexed to the nomination paper. In defence of his action, the Returning Officer has submitted before us the instructions supplied to all the Returning Officers. In the said instructions, clause (3) says that the candidate should not be a defaulter of the village panchayat and certificate by Gram Sevak to this effect must be there. The instructions did not say that such a certificate should be annexed to the nomination paper. The statute has provided that the candidate should not be a defaulter of the village panchayat. In what form the default is or is not, can be proved as a matter of evidence and if the Election Commission has issued any instructions, those instructions should have been made known to all candidates. The Election Commission or the other Officers engaged in the election process do not have power to issue instructions, which are not made known to the candidate, and, reject the nomination on the ground that the instructions have not been followed. Who is a qualified candidate to be a voter, how the nomination paper is to be filled in, are the mattes which affect the rights of individuals. Those cannot be governed by circulars or instructions which are for internal use only.
19. We, therefore, direct the State Election commission to see that any instructions, rules etc. which may entail rejection of nomination paper or the right of a person to vote despite the fact that his name is included in the Voters' list, should be notified properly and people likely to be affected should be informed by wide publicity. It is always better that such things are provided by the State Government by amending the rules. If there are instructions, and non compliance of which would invalidate the nomination paper, then it is always better that it is printed on the nomination paper itself unless the matter is already notified in the Act or the rules.