2004(4) ALL MR 258
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

D.D. SINHA AND B.P. DHARMADHIKARI, JJ.

Smt. Mayaraju Ghavghave Vs. Returning Officer For Gram Panchayat, Dhamangaon & Anr.

Writ Petition No.2146 of 2003

26th March, 2004

Petitioner Counsel: Shri. ANJAN DE
Respondent Counsel: Mrs. BHARATI DANGRE,Mrs. T. D. KHADE

Constitution of India, Arts.243-O(b), 329(b), 226 - Bombay Village Panchayats Act (1958), Ss.14(1)(h), 15, 15A - Election proceedings - Calling in question at intermediate stage - Embargo put under Art.329(b) - Not absolute and total - Challenge put in writ petition accelarating completion of election - Would not fall within total embargo under Art.329(b) - Gram Panchayat election - Notification paper rejected illegally - Writ petition against - Not barred under Art.243-O and S.15. 2003(4) Mh.L.J. 359 held per incurium.

The Apex Court in the case of Ponnuswami (AIR 1952 SC 64) categorically held that election can be called in question only at the appropriate stage in an appropriate manner before a special Tribunal and should not be brought up at an intermediate stage before any Court, however, in case, (1978(1) 405) it expressed that embargo for calling in question election proceedings under Article 329(b) of the Constitution is not absolute and total and would depend upon the type of challenge raised to the process of election and if the challenge is one which accelerates completion of an election and acts in furtherance of an election, such challenge, by necessary implication, would not fall within the ambit of total embargo created by Article 329(b) of the Constitution whereby proceedings of election or election can be called in question only at appropriate stage and in appropriate manner before the special Tribunal and should not be brought up at any intermediate stage before any Court. [Para 14,20]

Restrictive view expressed by the Apex Court in Ponnuswami's case vis-a-vis words "calling in question the election" used in Article 329(b) is widened by the Apex Court in Mohinder Singh Gill's case (1978(1) SCC 405) as well as Election Commission of India's case (2000(8) SCC 216) keeping in view the inherent mandate of Article 329(b) of the Constitution, i.e. Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings with further caution to the Court that care has to be taken to see that there is no attempt to utilize the court's indulgence by filing a petition outwardly innocuous, but essentially a subterfuge or pretext for achieving an ulterior or hidden end. At the same time, the decision, which is called in question before the Court pertaining to election shall not amount to "calling in question an election", if it subserves the progress of election and facilitates the completion of the election and, therefore, embargo created by Article 329(b) of the Constitution in this regard will not be attracted. [Para 23]

If the petition under Art.226 presented to the Court "calls in question an election", bar of Article 329(b) of the Constitution is attracted whereas any decision sought and rendered will not amount to "calling in question an election' if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. The words "calling in question the election" in Art.329(b) and in Art.243-O being in pari materia, the concept evolved by the Apex Court relating to Art.329(b) would be applicable to Art.243-O. Thus the High Court can entertained a petition under Article 226 in appropriate case even against rejection of nomination paper provided such indulgence subserves progress of the election or facilitates completion of the election and proceedings shall not amount to "calling in question an election", consequently legitimizing exercise of power under Article 226 of the Constitution. 2003(4) Mh.L.J.359 held per incurium. [Para 27]

In instant case petitioner was the only candidate contesting the Gram Panchayat election from a ward. Her nomination paper was rejected by the Returning Officer on ground that the father-in-law of the petitioner did not pay house tax, and therefore the petitioner incurred summary enquiry as contemplated by R.11(2) of the Bombay Village Panchayat - Election Rules (1959) was not conducted, the father-in-law had in fact paid the house tax, therefore the rejection of nomination paper of the petitioner being illegal was not sustainable in law, consequently, entertaining the writ petition by the High Court wherein, illegal rejection of nomination paper was challenged, did subserve the progress of election and in other words, it facilitated completion of election since petitioner being the sole candidate, would be declared elected and, therefore, proceedings initiated by the petitioner by filing the present petition against the order of rejection of her nomination paper, in the facts and circumstances of the present case, shall not amount to "calling in question the election". The embargo created by Article 243-O(b) of the Constitution is not attracted. Similarly, the provisions of Section 15-A of the Bombay Village Panchayats Act is not attracted challenging illegal rejection of nomination paper by filing writ petition cannot be termed as "calling in question an election of Panchayat." [Para 30,31]

There cannot be a generalized proposition of law that whenever there is a challenge raised in the petition against the order of Returning Officer refusing or accepting the nomination paper, such proceedings are not hit by the prohibition created by Article 243-O(b) of the Constitution and Section 15-A of the Bombay Village Panchayats Act and it necessarily shall depend upon facts and circumstances of each case and the Court is entitled to show indulgence only if it is satisfied that such indulgence would subserve progress of the election or facilitate completion of election and not otherwise. [Para 32]

Cases Cited:
Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi, 1978(1) SCC 405 [Para 5,15,16,17,19,23,28]
Election Commission of India Vs. Ashok Kumar, 2000(8) SCC 216 [Para 5,10,11,21,22,23,25,27,28,31]
Vinod Pandurang Bharsakade Vs. Returning Officer, Akot, 2003(4) Mh.L.J. 359 [Para 5,10,11,24,26,27,28]
N. P. Ponnuswami Vs. Returning Officer, Namakkal Constituency, AIR 1952 SC 64 [Para 4,10,11,28]
Anant Janardan Patil Vs. State of Maharashtra, 2002(2) ALL MR 80=2002(2) Mh.L.J. 238 [Para 6,24]


JUDGMENT

D. D. SINHA, J.:- Rule returnable forthwith. Heard finally by consent of Shri. De, learned Counsel for the petitioner, Mrs. Dangre, learned Assistant Government Pleader for respondent no.1, and Mrs. Khade, learned Counsel for the respondent no.2.

2. Shri. De, learned Counsel for the petitioner, states that the petition is directed against the order dated 28-5-2003 passed by the Returning Officer rejecting the nomination form, which the petitioner had filed for election of Gram Panchayat, Dhamangaon from Ward No.2 for the seat, which was reserved for "Other Backward Class". It is contended that the nomination form was filed on 27-5-2003 and scrutiny of nomination forms took place on 28-5-2003. The Returning Officer rejected the nomination form of the petitioner on 28-5-2003 on the ground that the tax receipt for the year 2002-03 in respect of the house owned by the father-in-law of the petitioner, with whom the petitioner was jointly residing, was not filed and, therefore, the petitioner had incurred disqualification under Section 14(1)(h) of the Bombay Village Panchayats Act, 1958. It is submitted that the petitioner was the only candidate, who had filed nomination form from Ward No.2 and, therefore, she was the sole candidate from the said Ward in the election.

3. Learned Counsel Shri. De states that in the instant case, a complaint was lodged by one Nilkanth Punjabrao Nandurkar, who is not even a voter of the said Ward, against the petitioner, alleging that the father-in-law of the petitioner has not paid taxes for the year 2002-03 and nomination form of the petitioner was rejected on the basis of the said complaint without following the due procedure applicable in this regard by the Returning Officer. It is submitted that in fact taxes for the above referred year were paid by the father-in-law of the petitioner on 10-9-2002, i.e. prior to the date prescribed for nomination of candidates and, therefore, in view of Explanation-2(i) to Section 14 of the Bombay Village Panchayats Act, 1958, the petitioner has not incurred any disqualification.

4. It is contended by learned Counsel Shri. De that Rule 11 of the Bombay Village Panchayat Election Rules deals with the scrutiny of nominations and requires that the Returning Officer shall make necessary enquiry before rejecting the nomination paper. In the instant case, though the petitioner's father-in-law had paid the taxes much prior to the last date of nomination, the Returning Officer, without conducting any enquiry in this regard, rejected the nomination paper of the petitioner on the ground of non-payment of House Taxes by her father-in-law and, therefore, the impugned order of rejection of nomination paper of the petitioner is invalid in law. It is further contended that in the instant case, the Standing Committee has not taken any steps as contemplated under sub-section (3) of Section 10 of the Bombay Village Panchayats Act and, therefore, if the petitioner succeeds in the present petition, she can be declared elected from Ward No.2.

5. Learned Counsel Shri. De further states that the present petition is maintainable in view of the judgments of the Apex Court in Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi, and others (1978(1) SCC 405) and Election Commission of India Vs. Ashok Kumar and others (2000(8) SCC 216). It is submitted that so far as the decision of the Division Bench of this Court in Vinod Pandurang Bharsakade Vs. Returning Officer, Akot and another (2003(4) Mh.L.J. 359) is concerned, the Division Bench of this Court, without considering the merits of the case and by following the decision in N. P. Ponnuswami Vs. Returning Officer, Namakkal Constituency (AIR 1952 SC 64), held that improper rejection of acceptance of nomination paper can be said to be one of the grounds for setting aside election and as such, the petition under Article 226 of the Constitution of India against the rejection of nomination form is not maintainable in the light of provisions of Article 243-O of the Constitution of India, read with Sections 15 and 15-A of the Bombay Village Panchayats Act. It is contended that the Division Bench of this Court did not consider the special circumstances in which petitions under Article 226 of the Constitution would be maintainable, as mentioned by the Apex Court in the judgments in Mohinder Singh Gill's case (cited supra) as well as Election Commission of India's case (cited supra) and, therefore, the law laid down by the Division Bench of this Court in Vinod Pandurang Bharsakade's case does not affect the maintainability of the present writ petition under Article 226 of the Constitution.

6. Learned Counsel Shri. De further submits that a similar situation arose before the Division Bench of this Court in case of Anant Janardan Patil Vs. State of Maharashtra and others (2002(2) Mh.L.J. 238 : 2002(2) ALL MR 80), where the petition was filed against rejection of nomination paper of the petitioner. The Division Bench of this Court not only entertained the petition, but issued a writ of certiorari and quashed and set aside the order of the Returning Officer, whereby nomination paper of the petitioner in the said case was rejected. It is contended that the Division Bench of this Court, taking into consideration the purport of Article 243-O of the Constitution, entertained the petition under Article 226 of the Constitution against the order of rejection of nomination paper and allowed the same and, therefore, the present petition is also maintainable.

7. It is contended by the learned Counsel for the petitioner that in view of Rule 15(2)(i) of the Bombay Village Panchayats Rules, the petitioner is entitled for declaration by the Returning Officer to be elected to fill in the respective seat since the petitioner is the sole contestant from the said Ward for the seat in question and if the nomination paper of the petitioner is accepted. It is further contended that so far as Rule 15(2)(ii) is concerned, after declaring the candidates qualified to be chosen to fill in the reserved vacancies as duly elected, if number of such candidates is less than the number of such seats, in respect of remaining such reserved seats it shall be deemed that the election has not resulted in the return of the required number of qualified persons willing to take office within the meaning of sub-section (3) of Section 10 of the Act.

8. Learned Counsel Shri. De states that in view of the above referred facts and circumstances as well as the law laid down by the Apex Court, the impugned order dated 28-5-2003 needs to be quashed and set aside and nomination form of the petitioner may be held to be valid and the petitioner may be declared elected from Ward No.2 from the reserved category.

9. Mrs. Dangre, learned Assistant Government Pleader for the respondent no.1, states that the petition has invoked writ jurisdiction of this Court assailing action of the Returning Officer in rejecting her nomination paper on 28-5-2003 for non-compliance of provisions contained in Bombay Village Panchayats Act. It is submitted that petitioner had submitted her nomination form from Ward No.2 of Gram Panchayat, Dhamangaon on 27-5-2003 and scrutiny of nomination form was made on 28-5-2003 as per election programme. At the time of scrutiny of nomination papers, an objection was raised by one Nilkenth Nandurkar stating the petitioner's father-in-law had not paid taxes for the year 2002-03. The Returning Officer while scrutinising nomination forms, in view of objection raised by Nilkanth Nandurkar, kept the matter for clearing the doubt in this regard till 5 p.m. on 28-5-2003. However, petitioner failed to remain present before the Returning Officer to explain about objection, as a result of which the Returning Officer rejected nomination form of the petitioner. It is contended that scrutiny of nomination form was done by the Returning Officer according to provisions of the Bombay Village Panchayats Act and nomination form was rejected in view of provisions contained in Section 14 of the said Act and, therefore, order of rejection of nomination form is legal and valid.

10. Mrs. Dangre, learned Assistant Government Pleader raises a preliminary objection about maintainability of the writ petition under Article 226 of the Constitution on the ground that petition filed by the petitioner at the stage of scrutiny and rejection of nomination form is not maintainable in view of provisions contained under Article 243-O(b) of the Constitution and Section 15-A of Bombay Village Panchayats Act. It is submitted that Section 15-A of the Act specifically creates a bar on interference by the Court in electoral matters. Similarly, Article 243-O of the Constitution provides for non-interference by the Court in electoral matters and, therefore, in view of these provisions, petitioner cannot invoke writ jurisdiction of this Court under Article 226 of the Constitution. It is contended that this issue has been finally concluded by the Supreme Court in Ponnuswami's case (cited supra) as well as Division Bench of this Court in Vinod Pandurang Bharsakade's case (cited supra). It is submitted that law in this regard is reiterated by the Apex Court in Election Commission of India's case (cited supra) and, therefore, in view of settled position of law laid down by the Apex Court as well as Division Bench of this Court referred to hereinabove, the present petition is not maintainable.

11. Learned Assistant Government Pleader Mrs. Dangre submits that it is well settled by the above referred decisions of the Apex Court as well as Division Bench of this Court that scrutiny of nomination form is one of the stages of election and, therefore, remedy, which can be invoked on rejection of nomination form, is by way of election petition and this Court's interference at this stage under Article 226 of the Constitution is barred. It is contended that Apex court in Ponnuswami's case (cited supra) while interpreting Article 329(b) of the Constitution held that word "election" would mean all stages up to result of the polling and final selection of candidates and election petition can be filed only after polling is over and at the stage of rejection of nomination paper, the aggrieved party cannot invoke extra-ordinary jurisdiction of this Court under Article 226 of the Constitution. It is further contended that in Election Commission of India's case (cited supra), the Apex Court reiterated the meaning of term "election" and held that the said action includes entire process from issuance of notification to the declaration of results. The Division Bench of this Court relying on the above referred law laid down by the Apex Court, in Vinod Pandurang Bharsakade's case (cited supra) held the petition under Article 226 of the Constitution against rejection of nomination paper cannot lie. In the instant case, since nomination paper of the petitioner has been rejected, keeping in view mandate of Article 243-O(b) of the Constitution and Sections 15 and 15-A of the Bombay Village Panchayats Act, remedy available to the petitioner is by way of election petition in accordance with the provisions of the said Act and she cannot invoke extra-ordinary jurisdiction of this Court under Article 226 of the Constitution. The learned Assistant Government Pleader, therefore, submits that the present petition under Article 226 of the Constitution is not maintainable and hence, same may be dismissed as not maintainable.

12. We have considered the contention canvassed by the learned Counsel for the parties and perused the above referred judgment. Before we consider merits of the present case, it is necessary to take into consideration the law laid down by various judicial pronouncements of the Apex Court on the subject.

13. The case of Ponnuswami is the leading case in election laws and deals with scope, amplitude, rationale and limitation of Article 329(b) of the Constitution. The ratio laid down by the Apex Court in the said case was followed by the Apex Court in its subsequent decisions after giving more thought to the concept and purport of words "calling in question" contemplated under Article 329(b) of the Constitution. Article 329(b) provides that notwithstanding anything in the Constitution, no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.

14. The provision of Article 329(b) of the Constitution undoubtedly creates total bar or prohibition to interfere even under Article 226 of the Constitution by the High Court with the process of election at the intermittent stage except by election petition. The Apex Court while interpreting provisions of Article 329(b) of the Constitution in Ponnuswami's case (Per Fazl Ali, J.) observed thus :

"The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Art.226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as aground to call the election in question. Article 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other Court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like Art.329(b) and in setting up a special tribunal. Any other meaning ascribed to the word used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it."

15. At the later point of time, the Apex Court in Mohinder Singh Gill's case (cited supra) more specifically considered the concept and purport of words "calling in question" mentioned in Article 329(b) of the Constitution since Article 329(b) prohibits calling in question election to either House of Parliament or to the House or either House of the Legislature of a State except by the election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature and in para (25) of the judgment observed thus:

"There is a non-obstante clause in Article 329 and, therefore, Article 226 stands pushed out where the dispute takes the form of calling in question an election, except in special situations pointed at but left unexplored in Ponnuswami."

16. The Apex Court while elaborating this issue, in para (26) of the judgment in Mohinder Singh Gill's case (cited supra) has observed thus :

"The rainbow of operations, covered by the compendious expression election, thus commences from the initial notification and culminates in the declaration of the return of a candidate. The paramount policy of the Constitution framers in declaring that no election shall be called in question except the way it is provided for in Article 329(b) and the Representation of the People Act, 1951, compels us to read, as Fazl Ali, J. did in Ponnuswami, the Constitution and the Act together as an integral scheme. The reason for postponement of election litigation to the post election stage is that elections shall not unduly be protracted or obstructed. the speed and promptitude in getting due representation for the electors in the legislative bodies is the real reason suggested in the course of judgment.'

17. Further relevant observations made by the Apex Court in Mohinder Singh Gill's case (cited supra) are in para (27), which read thus :

"Thus far everything is clear. No litigative enterprise in the High Court or other Court should be allowed to hold up the on-going electoral process because the parliamentary representative for the constituency should be chosen promptly. Article 329 therefore covers "electoral matters". One interesting argument, urged without success in Ponnuswami elicited a reasoning from the Court which has some bearing on the question in the present appeal. That argument was that if nomination was part of election a dispute as to the validity of the nomination was dispute relating to election and could be called in question, only after the whole election was over, before the election tribunal. This meant that the Returning Officer could have no jurisdiction to decide the validity of a nomination, although Section 36 of the Act conferred on him that jurisdiction. The learned Judge dismissed this argument as without merit, despite the great dialectical ingenuity in the submission. In this connection, the learned Judge observed :

"Under Section 36 of the Representation of the People Act, 1951, it is the duty of the Returning Officer to scrutinize the nomination papers to ensure that they comply with the requirements of the Act and decide all objections which may be made to any nomination. It is clear that unless this duty is discharged properly, any number of candidates may stand for election without complying with the provisions of the Act and a great deal of confusion may ensue. In discharging the statutory duty imposed on him, the Returning Officer does not call in question any election. Scrutiny of nomination papers is only a stage, though an important stage, in the election process, It is one of the essential duties to be performed before the election can be completed and anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the election. The fallacy of the argument lies in treating a single step taken in furtherance of an election as equivalent to election. The decision of this appeal however turns not on the construction of the single word election, but on the construction of the compendious expression "no election shall be called in question" in its context and setting, with due regard to the scheme of Part XV of the Constitution and the Representation of the People Act, 1951. Evidently, the argument has no bearing on this method of approach to the question posed in this appeal, which appears to me to be the only correct method."

18. having considered the above observations made by the Apex Court in Ponnuswami's case, the Apex Court in para (28) of its judgment in Mohinder Singh Gill's case observed thus :

"What emerges from this perspicacious reasoning, if we may say so with great respect, is that any decision sought and rendered will not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. We should not slur over the quite essential observation "Anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the election". Likewise, it is fallacious to treat a single step taken in furtherance of an election as equivalent to election."

19. The Apex Court in para (29) of its judgment in Mohinder Singh Gill's case (cited supra) finally observed thus :

"Thus, there are two types of decisions, two types of challenges. The first relates to proceedings which interfere with the progress of the election. The second accelerates the completion of the election and acts in furtherance of an election. So, the short question before us, in the light of the illumination derived from Ponnuswami, is as to whether the order for re-poll of the Chief Election Commissioner is anything done towards "the completion of the election proceeding" and whether the proceedings before the High Court facilitated the election process or halted its progress. The question immediately arises as to whether the relief sought in the writ petition by the present appellant amounted to calling in question the election. This, in turn, revolves round the point as to whether the cancellation of the poll and the reordering of fresh poll is part of election and challenging it is calling it in question."

20. It is, therefore, evident that though in Ponnuswami's case, the Apex Court categorically held that election can be called in question only at the appropriate stage in an appropriate manner before a special Tribunal and should not be brought up at an intermediate stage before any Court, however, in Mohinder Singh Gill's case, after taking into consideration the law laid down in Ponnuswami's case the Apex Court laid down that provisions of Article 329(b) of the Constitution can be viewed from two different angles in the form of two different challenges, firstly whether challenge raised to the election at the intermittent stage relates to proceedings which interferes with the progress of the election and secondly, whether it accelerates the completion of the election and acts in furtherance of an election. It is thus clear that Apex Court in Mohinder Singh Gill's case undoubtedly expressed that embargo for calling in question election proceedings under Article 329(b) of the Constitution is not absolute and total and would depend upon the type of challenge raised to the process of election and if the challenge is one which accelerates completion of an election and acts in furtherance of an election, such challenge, in our view, by necessary implication, would not fall within the ambit of total embargo created by Article 329(b) of the Constitution whereby proceedings of election or election can be called in question only at appropriate stage and in appropriate manner before the special Tribunal and should not be brought up at any intermediate stage before any Court.

21. It is important to note that Apex Court at the later point of time in Election Commission of India's case (cited supra) after considering in depth propositions of law vis-a-vis Article 329(b) of the Constitution, in para (31) of its judgment observed thus :

"The founding fathers of the Constitution have consciously employed use of the words "no election shall be called in question" in the body of Section 329(b) and these words provide the determinative test for attracting applicability of Article 329(b). If the petition presented to the Court "calls in question an election" the bar of Article 329(b) is attracted. Else it is not.."

22. So far as issue relating to mandate of Article 329(b) of the Constitution is concerned, the Apex Court in para (32) of its judgment in Election Commission of India's case (cited supra) concluded thus :

"For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove :

(1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.

(2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.

(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of malafide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.

(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court.

(5) The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilize the court's indulgence by filing the petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."

23. When we consider above referred conclusions in para (32) arrived at by the Apex Court on the backdrop of the observations made by the Apex Court in earlier paras of its above referred judgment, it is evident that there are different shades enumerated by the Apex Court in respect of analogy, i.e. what is meant by words "no election shall be called in question" mentioned in Article 329(b) of the Constitution and whether prohibition which flows from Article 329(b) in this regard is absolute and total or there are other facets of this issue. It is, therefore, implicit that restrictive view expressed by the Apex Court in Ponnuswami's case vis-a-vis words "calling in question the election" used in Article 329(b) is widened by the Apex Court in Mohinder Singh Gill's case (cited supra) as well as Election Commission of India's case (cited supra) keeping in view the inherent mandate of Article 329(b) of the Constitution, i.e. Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings with further caution to the Court that care has to be taken to see that there is no attempt to utilize the court's indulgence by filing a petition outwardly innocuous, but essentially a subterfuge or pretext for achieving an ulterior or hidden end. At the same time, the decision, which is called in question before the Court pertaining to election shall not amount to "calling in question an election", if it subserves the progress of election and facilitates the completion of the election and, therefore, embargo created by Article 329(b) of the Constitution in this regard will not be attracted.

24. It will be appropriate for us now to consider the decisions rendered by the Division Bench of this Court in Anant Janardan Patil's case (cited supra) and Vinod Pandurang Bharsakade's case (cited supra). The Division Bench of this Court in Anant Janardan Patil's case entertained the petition under Article 226 of the Constitution in view of peculiar facts of the said case. The petitioner's nomination papers were accepted under interim order of the Division Bench passed during pendency of the petition and petitioner was elected unopposed being sole contestant and, therefore, Division Bench, in the circumstances of that case, held in para (4) of its judgment thus :-

"We may notice here that by reason of Article 243-O of the Constitution of India, election to Panchayat cannot be questioned except by an election petition. The bar of Article 243-O(4) fundamentally rests on two planks : (i) the election process must culminate in formal declaration of the result without intermediate interruptions; and (ii) the aggrieved party has adequate and efficient remedy under election laws in questioning the election under available grounds and that must exclude other forum. However, in the peculiar facts of the present case, though petitioner has challenged rejection of his nomination papers, he cannot now be relegated to pursue the remedy under election laws. Section 15 of Bombay Village Panchayats Act, 1958 provides that validity of any elected member can be questioned by way of election petition inter alia on the ground of wrongful rejection of nomination papers. As noted above, the petitioner's nomination papers were accepted under the interim order of this Court and petitioner was elected unopposed being sole contestant. In the circumstances, remedy under election law is not available to him in challenging the order of Returning Officer rejecting his nomination papers and matter has to be examined by us under Article 226."

25. It is no doubt true that Division Bench of this Court in Anant Janardan Patil's case did not consider law laid down by the Apex Court in Ponnuswami's case. Mohinder Singh Gill's case and Election Commission of India's case (cited supra) vis-a-vis Article 329(b) of the constitution, which is pari materia with provisions of Article 243-O(b) of the Constitution. In view of peculiar facts in Anant Janardan Patil's case, the Division Bench of this Court exercised jurisdiction under Article 226 of the Constitution on the ground that acceptance of nomination papers of the petitioner in view of interim order of this Court resulted in declaring petitioner elected unopposed and consequently, remedy under election law is not available to him for challenging the order of Returning Officer rejecting his nomination papers. Therefore, validity of such rejection order of the Returning Officer was examined by the Division Bench under Article 226 of the Constitution. It is, therefore, evident that in Anant Janardan Patil's case, the Division Bench has exercised powers under Article 226 of the Constitution in altogether different situation and circumstances and because of peculiar facts of that case and without considering the law on the subject laid down by the Apex Court in the above referred cases and, therefore, the said judgment of the Division Bench in Anant Janardan Patil's case does not further the case of the petitioner on the point of law vis-a-vis Article 243-O(b) of the Constitution as well as provisions of Section 15-A of the Bombay Village Panchayats Act.

26. Another Division Bench of this Court in para (61) of its judgment in Vinod Pandurang Bharsakade's case (cited supra) after considering purport of Articles 243-O and 329(b) of the Constitution and Sections 15 and 15-A of the Bombay Village Panchayats Act as well as relying on the judgment of the Apex Court in Ponnuswami's case and other judgments of the Apex Court and High Courts, concluded thus :

"To us, the law appears to be well settled and it is that once the election process has started, it has to be over in accordance with the provisions of the relevant statute. Once an election notification is issued, the process can be said to have started. There are various stages of election. One of such stages is scrutiny of nomination papers. It is thus a part and parcel of election process. The law contemplates only one attack in election matters and that too, after the election is over. A petition under Article 226 of the Constitution against rejection of nomination paper, therefore, cannot lie. Since, in the instant cases, nomination papers of the petitioner have been rejected, keeping in view the mandate of the Constitution in Article 243-O(b) and Sections 15 and 15-A of the Act, the remedy available to the petitioners is to file election petition in accordance with provisions of the Act and not to invoke extraordinary jurisdiction of this court under Article 226 of the Constitution."

27. So far as law laid down by the Division Bench of this Court and ratio emerges from its decision in Vinod Pandurang Bharsakade's case is concerned, the Division Bench of this Court overlooked conclusion no.2 recorded by the Apex Court in para (32) of the judgment in Election Commission of India's case (cited supra) wherein Apex Court has clearly held that if the petition presented to the Court "calls in question an election", bar of Article 329(b) of the Constitution is attracted whereas any decision sought and rendered will not amount to "calling in question an election' if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. The above referred whole concept evolved by the Apex Court vis-a-vis the words "calling in question the election" used in Article 329(b) of the Constitution, which are pari materia with Article 243-O(b) of the Constitution, has been completely overlooked by the Division Bench of this Court in Vinod Pandurang Bharsakade's case (cited supra) and, therefore, restrictive proposition of law, which emerges from the said judgment vis-a-vis Article 243-O(b) of the Constitution shall not come in the way of the High Court to entertain a petition under Article 226 in appropriate case even against rejection of nomination paper provided such indulgence subserves progress of the election or facilitates completion of the election and, therefore, in view of law laid down by the Apex Court in Election Commission of India's case (cited supra), such proceedings shall not amount to "calling in question an election", consequently legitimizing exercise of power under Article 226 of the Constitution.

28. So far Vinod Pandurang Bharsakade's case (cited supra) is concerned, it appears that Division Bench of this Court considered the issue about maintainability of writ petition under Article 226 of the Constitution at the intermittent stage of the election only from the point of view of conclusion no.1 recorded in para (32) by the Apex Court in Election Commission of India's case (cited supra) as well as law laid down in Ponnuswami's case and not from the legal point of view mentioned in conclusion no.2 recorded by Apex Court in para (32) of its judgment in Election Commission of India's case as well as law laid down by the Apex Court in Mohinder Singh Gill's case (cited supra) and in the absence of adjudication by the Division Bench in this regard, it is difficult to ascertain as to whether conduct of the petitioner in Vinod Pandurang Bharasakade's case in invoking jurisdiction under Article 226 of the Constitution amounts to calling in question an election or exercise of power by the High Court under Article 226 would subserve the progress of the election and facilitate the completion of the election since Division Bench of this Court without considering merits of the case dismissed the writ petition as not maintainable by upholding the preliminary objection raised by the Government Pleader about maintainability of the writ petition under Article 226 of the Constitution and, therefore, in our considered view, the ratio laid down in the said judgment of the Division Bench of this Court does not conclude the issue about maintainability of the writ petition in all circumstances in view of conclusion no.2 mentioned in para (32) of the judgment of the Apex Court in Election Commission of India's case (cited supra) and, therefore, it does not further the case of the respondents in facts and circumstances of the present case and preliminary objection raised by the respondent no.1 about maintainability of the petition under Article 226 of the Constitution is rejected.

29. In the instant case, scrutiny of nomination form was done by the Returning Officer on 28-5-2003. However, Returning Officer has ignored provisions of Rule 11 of the Bombay Village Panchayat Election Rules, 1959. Sub-rule (2) of Rule 11 requires Election Officer to conduct summary enquiry before rejecting nomination paper on the ground of objection raised to such nomination paper. In the instant case, it is not in dispute that nomination paper of the petitioner was rejected on the ground of objection raised by one Nilkanth Nandurkar that father-in-law of the petitioner did not pay house tax for the year 2002-03 and, therefore, petitioner had incurred disqualification under clause (h) of Section 14(1) of the Bombay Village Panchayats Act. It was incumbent upon the Returning Officer to conduct summary enquiry in order to ascertain as to whether father-in-law of the petitioner had paid taxes or not particularly in view of provisions of explanation 2(1) of Section 14 of the Bombay Village Panchayats Act, which contemplates that a person shall not be deemed to be disqualified if he has paid the amount of tax or fee due, prior to the day prescribed for the nomination of the candidate.

30. In the instant case, it is not in dispute that father-in-law of the petitioner in fact had paid the house tax for the year 2002-03 on 10-9-2002, i.e. much before the last date of nomination, i.e. 27-5-2003 and if the Returning Officer had conducted the summary enquiry in this regard, the nomination paper of the petitioner would not have been rejected on this count and question of incurring disqualification under clause (h) of Section 14 of the Bombay Village Panchayats Act would not have arisen. Similarly, nomination paper is in the prescribed form "A" and stipulations in the said form do not require candidate to either mention that the taxes for the relevant year are paid by the candidate or his family members or annex with the said form receipt of payment of taxes for the relevant year. In absence thereof, the summary scrutiny by the Returning Officer before rejecting nomination paper assumes importance and failure to follow this procedure undoubtedly has not only caused prejudice to the petitioner, but also resulted in miscarriage of justice. Hence, in the facts and circumstances of the present case and for the reasons stated hereinabove, the impugned order dated 28-5-2003 passed by the Returning Officer cannot be sustained. The same is quashed and set aside.

31. So far as present case is concerned, the petitioner being the sole candidate from Ward No.2, who has questioned the legality and propriety of order of rejection of her nomination paper by the Returning Officer in the present petition and having held by us that such order of rejection is not sustainable in law, it is evident that indulgence shown by this Court does subserve the progress of election and in other words, it facilitates completion of election since petitioner being the sole candidate, would be declared elected and, therefore, proceedings initiated by the petitioner by filing the present petition against the order of rejection of her nomination paper, in the facts and circumstances of the present case, shall not amount to "calling in question the election" in view of law laid down by the Apex Court in Election Commission of India's case (cited supra) and by necessary implication, the embargo created by Article 243-O(b) of the Constitution is not attracted. Similarly, so far as provisions of Section 15-A of the Bombay Village Panchayats Act are concerned, there is a prohibition to call in question an election to Panchayat except in accordance with provisions of Section 15 and no Court other than Judge referred to in that Section shall entertain any dispute in respect of such election. For similar reasons, same is also not attracted since challenge made by the petitioner to the order of the Returning Officer, in the facts and circumstances of the present case and for the reasons stated hereinabove, cannot be termed as "calling in question an election of Panchayat".

32. Before we part with this judgment, we want to make it clear that there cannot be a generalized proposition of law that whenever there is a challenge raised in the petition against the order of Returning Officer refusing or accepting the nomination paper, such proceedings are not hit by the prohibition created by Article 243-O(b) of the Constitution and Section 15-A of the Bombay Village Panchayats Act and it necessarily shall depend upon facts and circumstances of each case and the Court is entitled to show indulgence only if it is satisfied that such indulgence would subserve progress of the election or facilitate completion of election and not otherwise.

33. In the instant case, since petitioner is the sole candidate from Ward No.2 and we have set aside the order of rejection of her nomination paper passed by the Returning Officer, in view of provisions of Rule 15(2)(i) of the Bombay Village Panchayats Election Rules, 1959, petitioner is declared as a Member from Ward No.2 of Gram Panchayat, Dhamangaon, Taluq Hinganghat, District Wardha.

34. The rule is made absolute in the above terms. No order as to costs.

Petition allowed.