Writ Petitions No.19 of 2007,Writ Petitions No.20 of 2007,Writ Petitions No.22 of 2007,Writ Petitions No.146 of 2007

15th January, 2007

Petitioner Counsel: Shri. S. S. GHATE
Respondent Counsel: Shri. P. MARPAKWAR,Shri. C. S. KAPTAN,Shri. S. L. KOTWAL

Cases Cited:
Prashant Dhawad Vs. Election Commission, W.P.No.20 of 2007, dt.9-1-2007 [Para 5]
Manda Jagnath Vs. K. S. Rathnam, (2004)7 SCC 492 [Para 8,15]
Ram Phal Kundu Vs. Kamal Sharma, AIR 2004 SC 1657 [Para 9]
Election Commission of India Vs. Ashok Kumar, 2000 AIR SC 2977 [Para 10]
N. P. Ponnuswami Vs. Returning Officer, Namakkal, AIR (39) 1952 SC 64 [Para 11,13]
Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796 [Para 11]
Jyoti Basu Vs. Debi Ghosal, 1982(1) SCC 696 [Para 12]
Samsher Singh Vs. State of Punjab, 1972 SCC 831 [Para 12]
Rama Kant Pandey Vs. Union of India, (1993)2 SCC 438 [Para 12]
S. T. Muthusami Vs. K. Natarajan, (1988)1 SCC 572 [Para 16]

JUDGMENT

V. C. DAGA, J.:- Heard. Perused all petitions.

2. All these petitions are directed against order of Returning Officer refusing to accept petitioners as official candidates of recognised political party i.e. Indian National Congress. Since all these petitions involve more or less similar facts and common question based on common submission they are being heard together and disposed of by this common order. The facts are borrowed from Writ Petition No.20 of 2007 (Prashant Vs. State Election Commission & oth.)

FACTUAL SCENARIO :

3. The factual scenario depicts that the Commissioner, Nagpur Municipal Corporation on 26-12-2006 declared elections along with election programme for holding elections and published the same in the official gazette. The Election Programme is as under :

Sr. no.	Particulars	Dates
1.	Submission of Nomination formalities	26-12-2006         to 02-01-2007
2.	Scrutiny of nomination focus	03-01-2007
3.	Publication of list of candidates	11-01-2007
4.	Date of withdrawal	13-01-2007
5.	Allotment of Symbols	15-01-2007
6.	Final list of candidates	17-01-2007
7.	Publication of list of polling booths	17-01-2007
8.	Publication of boothwise voters list	17-01-2007
9	Date of polling	01-02-2007
10.	Counting & declaration of results	02-02-2007
11.	Publication of results in Govt. Gazette	09-02-2007

4. The elections to the Municipal Corporation are required to be conducted as per rules framed by the City of Nagpur Corporation vide Notification No.NMC-230/1965/M-XII dated 15-01-1952, popularly known as "Rules for Election for Councilors" ("Election Rules" for short). As per Election Rules candidate set up by political parties has to submit, along with his nomination, Form "A" and "B" i.e. communication by authorized person of a recognized party to the Returning Authority, that a particular candidate is set up by a recognized political party. It appears that in the instant case, the petitioner has submitted Form "A" "B", signed by the Authorised person, at 12.25 p.m. on 02-01-2007, whereas, prior to this, on 29-12-2006 respondent No.4 has submitted his nomination form mentioning therein that he was a candidate set up by Indian National Congress Party. However, while submitting nomination respondent No.4 did not submit A, B From. It appears that on 3rd January, 2007 a letter issued by General Secretary of Maharashtra Pradesh Congress Committee, addressed to the Returning Officer, informing therein that the petitioner is official Congress (I) candidate, came to be submitted at 12.25 hrs. on 03-01-2007. Since it was received after the scrutiny of nomination forms by the Election Officer, he did not act upon the said letter, by a reasoned order, treated the petitioner as an independent candidate. In other words, the petitioner was not recognised as a candidate set up by recognized political party i.e. Congress (I). This order of the Election Officer dated 03-01-2007 along with other similar orders are the subject matter of challenge in the present bunch of petitions.

5. All these petitions were initially placed before the learned Single Judge for admission, however, in one of the petitions, being Writ Petition No.20 of 2007, Prashant Dhawad Vs. Election Commission and others, the learned Single Judge on 09-01-2007 has passed following order :

"Functions of Returning Officer are executive functions. He does not adjudicate rights of parties as a judicial or quasi judicial officer or Court. He does not have any trapings of a judicial or quasi judicial authority. The lis does not fail within the jurisdiction of Single Judge."

In view of the above order of the learned Single Judge all these petitions are placed before this Division Bench for admission and interim relief.

6. Mr. Sunil Manohar, learned counsel appearing for respondent No.4, without prejudice to his right to proceed for hearing before this Division Bench contends that the functions of the Returning Officer are quasi-judicial in nature, since he is required to decide objections to the nomination form by a reasoned order. In his submission, Returning Officer, while holding scrutiny of the nomination papers is expected to discharge his duty with complete judicial detachment and in accordance with highest judicial standard. He further urged that fairness, impartiality and equal dealing with all the candidates are expected from a Returning Officer. He thus, urged that looking to the important quasi-judicial functions, he is expected to discharge, such petitions would be within the jurisdiction of the learned Single Judge.

7. Notwithstanding the above, all parties to the petition, in all fairness, stated that they will have no objection if this Court proceeds to hear the petitions and dispose of the same considering the urgency involved in the present matters. That is how these petitions were heard by this Court on the basis of consent of all the parties.

RIVAL SUBMISSIONS :

8. Mr. Kaptan, learned counsel appearing for the Returning Officer, raised a preliminary objection to the maintainability of the petitions contending that the remedy of election petition is available to the aggrieved parties. Hence, petitioners be relegated to the alternate remedy and these petitions should not be entertained. Reliance is placed on the judgment of the Apex Court in case of Manda Jagnath Vs. K. S. Rathnam and others, reported at (2004)7 SCC 492 in support of the submissions advanced.

9. Mr. Kukdey, learned counsel appearing for the petitioners, while replying to the above preliminary objection, urged that the election process, though commenced but symbols are yet to be allotted, and therefore, this is a stage, if petitions are entertained and decided, it will not arrest the process of election. He placed reliance on the judgment of the Apex Court in the case of Ram Phal Kundu Vs. Kamal Sharma, reported at AIR 2004 SC 1657 in support of his submission.

10. Mr. Ghate, learned counsel appearing for the petitioners in another set of petitions, while reiterating the above submissions advanced by Mr. Kukdey, placed reliance on the another judgment of the Apex Court in the case of Election Commission of India Vs. Ashok Kumar, reported at 2000 AIR SC 2977 to answer the preliminary objection raised by Respondent No.2. The petitioners have also canvassed their submissions on merits, which we do not propose to reproduce for the reasons recorded hereinafter.

CONSIDERATION :

11. Having heard rival parties, at the outset, we propose to deal with the contention of Mr. Manohar with respect to the jurisdiction of the learned Single Judge to deal with the matters at hand. We must observe that the Apex Court in the case of N. P. Ponnuswami Vs. Returning Officer, Namakkal, reported at AIR (39) 1952 SC 64 in paragraph 26 has observed as under :

"..... Under S.36, 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 property, 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." (Emphasis supplied).

In the same judgment in paragraph 8 the Apex Court has laid down as under :

"8. The next important question to be considered is what is meant by the words "no election shall be called in question." A reference to any treatise on elections in England will show that an election proceeding in that contrary is liable to be assailed on very limited grounds, one of them being the improper rejection of a nomination paper. The law with which we are concerned is not materially different, and we find that in S.100 Representation of the People Act, 1951, one of the grounds for declaring an election to be void is the improper rejection of a nomination paper."

The Apex Court in the case of Birad Mal Singhvi Vs. Anand Purohit, reported at AIR 1988 SC 1796 observed as under (Head Note (B) :

"During the scrutiny the Returning Officer is under a statutory duty to satisfy himself that the candidate who may have filed nomination paper possesses the necessary constitutional qualification for contesting the election. Enquiry during scrutiny is summary in nature as there is no scope for any elaborate enquiry at that stage. Therefore it is open to a party to place fresh or additional material before the High Court to show that the Returning Officer's order rejecting the nomination paper was improper. It should be borne in mind that the proceedings in an election petition are not in the nature of appeal against the order of the returning officer. It is an original proceeding."

12. At this juncture, it will be useful to note that the right to vote or to stand as a candidate for election is neither a fundamental nor a civil right. It is not a common law right. It is special right created by statute and can only be exercised by condition laid down by the statute. In this connection we may usefully refer to the following observations of the Apex Court in Jyoti Basu Vs. Debi Ghosal reported at 1982(1) SCC 696 made in paragraph 7 and 8, which read as under :

"The nature of the right to elect, the right to be elected and the right to dispute an election and the scheme of the constitutional and statutory provisions in relation to these rights have been explained by the Court in N. P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Jagan Nath Vs. Jaswant Singh. We proceed to state what we have gleaned from what has been said, so much as necessary for this case."

As already stated hereinabove right to vote or stand as a candidate at election is not civil right but is creature of statute or special law known as "Election Law". Election law recognises political parties and further recognises candidates to be set up by the political parties. In the election all these rights are given by the statute. It has firmly been established that the Cabinet system of Government has been envisaged by our Constitution and that the same is on the British pattern (See Samsher Singh Vs. State of Punjab, 1972 SCC 831). It has been realised that for a strong vibrant democratic Government, it is necessary to have a parliamentary majority as well as a parliamentary minority, so that the different points of view on controversial issues are brought out and debated on the floor of the Parliament. This can be best achieved by the party system, so that the problems of the nation may be discussed, considered and resolved in a constructive spirit. Our Constitution has clearly recognized the importance of this system, which was further emphasized by the addition of the Tenth Schedule to it. The Election Symbols (Reservation and Allotment) Order is also a step in that very direction. As held by the Apex Court in the case of Rama Kant Pandey Vs. Union of India, reported at (1993)2 SCC 438.

13. In the aforesaid scenario it is clear that the Returning Officer is dealing with statutory rights of the parties when he accepts or rejects nomination form of a particular candidate belonging to a particular party. The Returning Officer is entrusted with responsibility to do all such acts as may be necessary for effectively conducting elections, including act of scrutinizing nomination papers for determining eligibility of candidates or supervising or directing counting while elections. His improper rejection or acceptance of nomination papers may result in election to be declared null and void with all serious consequences. Determination of validity or invalidity of odd votes eventual in nature, counting might result in reversion of the election results. Some of the leading authors have gone to the extent of saying that when the Returning Officer carries out scrutiny of nomination he performs judicial functions. While carrying out scrutiny of the nomination the Returning Officer performs judicial functions as he is required to conform to the judicial standards and is not expected to mechanically reject nominations, he has been authorised to hold summary enquiry. As it becomes necessary to become a Judge in substantial character of the irregularities alleged. He should not shirk from holding a summary inquiry if the obscurity can be cleared up then and there. He has to judge whether a candidate is eligible for being elected and whether in seeking nomination he has complied with the provisions of the Act and Rules which he is required to follow. When he scrutinises nomination forms, accepts or rejects it or he decides whether or not a particular candidate should be treated as official candidate of a particular recognised party, he deals with statutory rights of the parties and decides the same by a reasoned order. In some of the cases appeal is provided against his order. Thus, taking into account nature of functions of the Returning Officer while carrying out scrutiny of the nomination we do not think that the function of the Returning Officer is executive in nature, either it is judicial or quasi judicial, but by no means executive in nature. As held by the Apex Court in N. P. Ponnuswami (supra) Returning Officer discharges statutory duty imposed upon him. In this view of the matter, the petitions were well within the jurisdiction of the learned Single Judge.

14. Be that as it may, let us now turn to the preliminary objection raised by Respondent No.2.

15. Preliminary objection raised by the contesting respondents needs to be upheld in view of the law laid down by the Apex Court in the case of Manda Jaganath Vs. K. S. Rathnam (supra), wherein in the backdrop of the factual scenario, which is almost similar in the cases at hand, the Apex Court observed as under :

"In our opinion, whether the Returning Officer is justified in rejecting this Form B submined by the first respondent herein or not, is not a matter for the High Court to decide in the exercise of its writ jurisdiction. This issue should be agitated by an aggrieved party in an election petition only." (Emphasis supplied).

The Apex Court further observed in paragraph 18 as under :

"....If by an erroneous order conduct of the election is not hundered then the courts under Article 226 of the Constitution should not interfere with the orders of the Returning Officers, remedy for which lies in an election petition only." (Emphasis supplied).

16. In the case of S. T. Muthusami Vs. K. Natarajan & oth. reported at (1988)1 SCC 572 the Apex Court, following judgment in Ponnuswami, has held that entertaining writ petition by the High Court cannot be supported, consequently it set aside the judgment of the Division Bench of the High Court passed in that case and dismissed the petition. In that case similar question regarding dispute of symbols between two political parties was involved.

17. Where a statute provides for election to an office, or an authority or institution and further provides a machinery or forum for determination of dispute arising out of election, ordinarily the aggrieved person should pursue his remedy before the forum provided by the statute. The right to vote, contest or dispute election is neither a fundamental nor common law right, instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Article 226 bypassing the machinery designated by the act for determination of the election dispute. But, there may be cases where exceptional or extraordinary circumstances may exist to justify bypassing the alternative remedies. In the instant cases, there existed no circumstance justifying departure from the normal rule.

18. In view of above, since we are dismissing these petitions upholding preliminary objection raised by the respondent No.2, in our considered view it is not necessary to deal with the contentions of parties on the merits of the matter. We dismiss all these petitions, leaving parties to the remedy of election petitions, keeping all rival contentions open. No order as to costs.

Petitions dismissed.