Writ Petition No.8445 of 2009

8th October, 2009

Petitioner Counsel: Mr. G. S. GODBOLE i/b. PRADEEP PATIL and Mr. S. S. DESHMUKH
Respondent Counsel: Mr. PRADEEP RAJAGOPAL, Mr. B. B. BHOSALE i/b. SACHINDRA B. SHETYE, Mr. V. A. GANGAL, Mr. ASHOK T. GADE, VINDU P. PANDEY, Mr. P. K. DHAKEPHALKAR, Mr. J. G. REDDY, Mr. A. P. KULKARNI

Cases Cited:
N. P. Ponnuswami Vs. The Returning Officer, Namakkal Constituency, Namakkal, Sale Dist, AIR (39) 1952 SC 64 [Para 4,10]
Mohinder Singh Gill Vs. The Chief Election Commissioner, New Delhi, (1978)1 SCC 405 [Para 4,7,11]
Election Commission of India Vs. Shivaji, (1988)1 SCC 277 [Para 4,12]
K. Venkatachalam Vs. A. Swamickan, 1999(3) ALL MR 643 (S.C.) =(1999)4 SCC 526 [Para 7]

JUDGMENT

JUDGMENT :- The petitioner is a resident of Taluka Baglan, District Nashik. Respondent 1 is the Returning Officer of 116, Baglan Assembly Constituency (S.T.), Taluka Baglan, District Nashik. Respondent 2 is the State Election Commissioner. Respondent 3 is the Election Commission of India. Respondent 4 is the State of Maharashtra. Respondent 5 is Sanjay Kantilal Chavan, who has filed his nomination papers from 116, Baglan Assembly Constituency for the forthcoming General Elections to the Maharashtra Legislative Assembly to be held on 13/10/2009.

2. Admittedly, on 18/9/2009, Election Notification has been issued by respondent 3 for the General Election to the Maharashtra Legislative Assembly. On the same day, election programme has been declared. Election nominations were to be filed from 18/9/2009 to 25/9/2009. On 26/9/2009, there was to be a scrutiny of the nomination papers.

3. According to the petitioner, on 23/9/2009, respondent 5 filed his nomination from 116, Baglan Assembly Constituency reserved for Scheduled Tribe community. The petitioner raised a written objection to the nomination of respondent 5 on 26/9/2009 on the ground that respondent 5 does not belong to the Scheduled Tribe Thakur and the certificate on which he was placing reliance to contend that he belongs to Thakur Scheduled Tribe, is bogus. On 26/9/2009, respondent 1 conducted a hearing on the objections raised by the petitioner. Upon hearing both the parties, respondent 1 overruled the objections raised by the petitioner and declared that the nomination of respondent 5 is valid. The said order is challenged in this petition.

4. Mr. Dhakephalkar, learned senior counsel appearing for respondent 5 has raised a preliminary objection to the maintainability of this petition. He submitted that admittedly, the election process has started and, therefore, the present writ petition is not maintainable in view of Article 329(b) of the Constitution of India. The remedy of the petitioner is only by way of an election petition. In this connection, learned counsel relied on the judgments of the Supreme Court in N. P. Ponnuswami Vs. The Returning Officer, Namakkal Constituency, Namakkal, Sale Dist and others, AIR (39) 1952 SC 64; Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors., (1978)1 SCC 405 and Election Commission of India Vs. Shivaji & Ors., (1988)1 SCC 277. He also drew our attention to Section 100(1)(d)(i) of the Representation of the People Act, 1951 (for short, "the said Act"), which provides that improper acceptance of any nomination can be subject matter of a substantive election petition.

5. Mr. Dhakephalkar submitted that besides the order invalidating the caste claim of respondent 5 is not final, it is under challenge in this court and this court has issued Rule on the petition filed by respondent 5. Therefore, whether respondent 5 belongs to Thakur Scheduled Tribe or not is yet to be finally determined. Learned counsel submitted that this court has also issued Rule on interim relief prayed for by respondent 5 and this court has permitted him to attend the legislative assembly. He submitted that if the petitioner is really aggrieved, he can file a substantive election petition in which this court can take into consideration all grievances made by the petitioner including his grievance regarding the conduct of respondent 1. Learned counsel submitted that therefore, this court should not entertain this writ petition. Mr. Rajagopal, learned counsel for respondents 1 and 3 has adopted the submissions of Mr. Dhakephalkar.

6. Mr. Godbole, learned counsel for the petitioner has drawn our attention to the impugned order. He submitted that the impugned order has been passed by respondent 1 on an erroneous premise. It is observed therein that prima facie it appears that order dated 22/10/2008 passed by the Scrutiny Committee is stayed by this court by its order in Writ Petition No.7401 of 2008. Mr. Godbole submitted that respondent 1's order is therefore, perverse. In fact, respondent 1 has misread the order passed by this court. He submitted that such perversity in the impugned order calls for immediate intervention of this court.

7. Mr. Godbole drew our attention to Article 332 of the Constitution of India which provides for reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States. Mr. Godbole submitted that this Article embodies the constitutional mandate that there must be a representative of a Scheduled Tribe from a particular constituency. He submitted that inasmuch as caste certificate issued to respondent 5 has been declared invalid, he cannot contest election from the seat reserved for Scheduled Tribe because that would result in violation of the constitutional mandate. Learned counsel submitted that it is true that generally if the election process has started, the court will not entertain any petition under Article 226 of the Constitution of India and the proper remedy is filing of an election petition. However, the court acting under its writ jurisdiction is not totally powerless and in case there is a fraud on the Constitution, this court can always intervene. Learned counsel pointed out that respondent 1 has in the impugned order stated that the Scrutiny Committee's order cancelling his claim that he belongs to Scheduled Tribe Thakur is stayed when in fact it is not so. On this ground, his nomination papers have been accepted for 116, Baglan constituency which is reserved for Scheduled Tribes. It is clear from the Scrutiny Committee's order that respondent 5 does not belong to Thakur Scheduled Tribe. Therefore, to permit such a person to file nomination form on an obviously untenable false ground is clearly a fraud on the Constitution. Mr. Godbole relied on the judgment of the Supreme Court in Mohinder Singh Gill's case (supra) to contend that writ jurisdiction of this court is not completely ousted when there is fraud on the Constitution. He also relied on K. Venkatachalam Vs. A. Swamickan & Anr., (1999)4 SCC 526 : [1999(3) ALL MR 643 (S.C.)].

8. Learned counsel then relied on the judgment of the Supreme Court in Digvijay Mote's case (supra) and pointed out that in this case, the Supreme Court has held that depending on the facts and circumstances of each case, action of the Election Commission is also subject to judicial review. He submitted that on similar analogy, action of respondent 1 i.e. the Returning Officer will also be subject to judicial review. Mr. Godbole submitted that the judicial review of the action of respondent 1 would be permissible in a given set of circumstances irrespective of Article 329 of the Constitution. Learned counsel submitted that this case falls in those exceptional cases in which this court can in its jurisdiction under Article 226 of the Constitution interfere with the order of respondent 1. He submitted that it is not necessary to stay the elections. This court can merely direct respondent 1 to declare that respondent 5 is not eligible to contest the election. Learned counsel submitted that a case is therefore made out for interference with the impugned order.

9. We have already noted that learned counsel for the parties are agreed that the election process starts from the date of notification of election and ends on declaration of election results. Therefore, in this case, the election process has started.

10. In N. P. Ponnuswami's case (supra), the grievance of the petitioner therein was that his nomination papers were wrongly rejected. The Supreme Court inter alia, held that the said Act is a self-contained enactment so far as elections are concerned. The said Act provides the remedy of an election petition to be presented after the election is over and that no remedy is provided at an intermediary stage. We may quote the relevant observations of the Supreme Court.

"The law of elections in India does not contemplate that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extra-ordinary 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. 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. 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 a ground 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. 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 words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting view 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."

11. In Mohinder Singh Gill's case (supra), the Supreme Court has clarified that the election commences from the initial notification and culminates in the declaration of the returned candidate. In that case, the Supreme Court clarified that Article 329(b) is a blanket ban on litigative challenges to electoral steps taken by the Election Commission and its officers for carrying forward the process of election to its culmination in the formal declaration of the result. The Supreme Court has also clarified that under the said Act, the Election Tribunal has large enough powers to give relief to an injured candidate if he makes out a case and such processuel amplitude of power extends to directions to the Election Commission or other appropriate agency to hold a poll, to bring up the ballots or do other thing necessary for fulfillment of the jurisdiction to undo illegality and injustice and do complete justice within the parameters set by the existing law.

12. In Shivaji's case (supra), the Supreme Court has again made it clear that the process of election to either House of Parliament or State legislature can be challenged only by filing election petition and not by filing writ petition under Article 226 of the Constitution of India. The Supreme Court has made it clear that the High Court has no jurisdiction to interfere with the election process by issuing interim orders.

13. So far as reliance placed by Mr. Godbole on the judgment of the Supreme Court in Digvijay Mote's case (supra), is concerned, it is in our opinion, totally mis-placed. No doubt, in that case, the Supreme Court has held that the powers of the Election Commission under Article 324 of the Constitution of India are not unbridled. It is, however, pertinent to note that the Supreme Court has held that the judicial review will be permissible depending upon the facts and circumstances of each case. In that case, the Supreme Court was dealing with a public interest litigation. Very wide prayers were made before the Supreme Court by a person claiming to be a social worker. His case was that when the Parliamentary elections were held in the country in December, 1984, the State of Assam which elects 14 representatives to the Lok Sabha was delinked on the ground that the electoral rolls were not updated and this was violative of Articles 14 and 19 of the Constitution of India. His case was that the States of Assam and Punjab had become the victims of terrorist activities and during the entire term of the Ninth Lok Sabha, Assam did not have its representation. He had, therefore, inter alia, prayed that the Chief Election Commissioner be debarred from discharging his functions pending the petition. Observations of the Supreme Court will have to be read against the backdrop of the above fact. It is pertinent to note that the petition was dismissed. No relief was granted to the petitioner and while dismissing the petition, the Supreme Court observed that the exercise of power under Article 329 is not altogether unreviewable. The review would depend upon the facts and circumstances of each case. The facts of that case cannot be equated with the facts of the present case.

14. Mr. Godbole's reliance on the judgment of the Supreme Court in K. Venkatachalam's case is also mis-placed. In that case the Supreme Court was dealing with a situation where the candidate was elected by impersonation. After the election, while scrutinizing the electoral roll of the constituency the rival candidate came to know about the appellant's disqualification. By that time the prescribed period for filing an election petition under Section 81 of the said had expired. Learned Judge of the High Court dismissed the writ petition challenging the election of the appellant on the ground that it was not maintainable under Article 226 of the Constitution of India in view of the bar contained in clause (b) of Article 329 of the Constitution of India. In writ appeal the High Court held that the appellant did not possess the basic qualification prescribed in clause (c) of Article 173 of the Constitution of India read with Section 5 of the said Act and, therefore, he was an elector for the concerned constituency and hence he did not possess the necessary qualification to be chosen from that constituency. The High Court's judgment was challenged in the Supreme Court. The Supreme Court upheld the High Court's view. In our opinion, the petitioner cannot draw any support from this judgment because in that case alternative remedy of election petition was time barred. Besides the facts of the case were gross. The appellant was elected by impersonation. The High Court had recorded a finding of fact that the appellant had impersonated a person who bore his first name. The ratio of the said judgment is therefore not attracted to this case.

15. In our opinion, the aforementioned judgments make it very clear that a petition challenging the Returning Officer's order accepting nomination of a candidate cannot be challenged by way of a writ petition. The petitioner, if he so desires may file an election petition, in which all his grievances including the grievance about the conduct of respondent 1 can be taken into account. Besides, in view of the fact that the petition filed by respondent 5 challenging the order of the Scrutiny Committee is admitted by this court, the Scrutiny Committee's order cannot be said to have attained finality as of today. In the aforementioned circumstances, without expressing any opinion on the merits of the case, we dismiss the petition.

Petition dismissed.