Writ Jurisdiction Cannot Be Extended Against The Rejection Of Nomination Papers At An Intermediate Stage Of Gram Panchayat Elections: Bombay HC [FB]

The bench also clarified that Art. 243-O(b) of the Constitution places a bar on the HC for entertaining writ petitions under Art. 226 against impugned orders passed by the Returning Officer rejecting the nomination papers.

BACKGROUND OF THE REFERENCE

The division bench of the Bombay High Court was dealing with a bunch of petitions which challenged the orders passed by the Returning Officer of Bhose Gram Panchayat wherein the nomination papers of the petitioners were rejected. Therefore, the petitioner had prayed for setting aside the impugned orders of the Returning Officer and a direction on the State Election Commission to cancel the Gram Panchayat elections in order to conduct a fresh election and also to take action against the village officials who had allegedly issued fabricated certificates leading to their rejection of nomination papers.

The need of reference to a larger bench was felt by the division bench after the counsels from both the sides argued over the maintainability of petitions under Art. 226 of the Constitution. It was argued on behalf of the State Election Commission that the petitions are not maintainable according to the decision in Vinod Pandurang Bharsakade v. Returning Officer, Akot (2003) wherein the division bench of Bombay HC was of the opinion that any dispute regarding elections can only be raised after elections by raising election dispute.

It was argued on behalf of the petitioners that the petitions were in fact maintainable in accordance with the two decisions of coordinate benches of the HC in Sudhakar s/o. Vitthal Misal v. State of Maharashtra & Ors. 2007(6) All MR 773 and Smt. Mayaraju Ghavghave v. Returning Officer for Gram Panchayat, Dhamangaon & Anr. 2004(4) ALL MR 258 wherein the petitions were held maintainable as it did not call in question the election but only the right to contest election.

The division bench had prima facie opined that the writ petitions are not maintainable under Art. 243-O(b) and that if the relief is with regards to facilitating completion of the election, petitioners must challenge the impugned orders in judicial review. However, due to the conflict in decisions in the three judgments, the division bench referred the following questions to the larger bench:

1. Does allowing a challenge in a writ petition to rejection of nomination form to contest an election and granting the relief claimed by setting aside such order of rejection, amount to intervention, obstruction or protraction of the election or is it a step to facilitate the process of completion of election?
2. Whether rejection of nomination form would attract the provisions of Article 243-O(b) of the Constitution of India?
3. Are the views expressed by the Division Benches of this Court in the cases of Sudhakar s/o. Vitthal Misal and Smt. Mayaraju Ghavghave correct, or does the decision in the case of Vinod Pandurang Bharsakade represents the correct view in law?

OBSERVATIONS OF THE BENCH

The bench analyzed the provisions of Part IX of the Constitution which deals with "Panchayats". It was observed that Art. 243, 243A to 243O were incorporated in the Constitution by 73^rd Amendment Act after the Panchayati Raj Bill was introduced.

Thereafter, Maharashtra Village Panchayats Act, 1959 was also amended wherein Sec. 10A was introduced that provided for State Election Commission. Another provision Sec. 15A was amended which provided a bar on the Courts to interfere in electoral matters. According to the provision:

"If the validity of any election of a member of a panchayat is brought in question by any candidate at such election or by any person qualified to vote at the election to which such question refers such candidate or person may at any time within fifteen days after the date of the declaration of the result of the election, apply to the Civil Judge (Junior Division) and if there be no Civil Judge (Junior Division) then to the Civil Judge (Senior Division) having ordinary Jurisdiction in the area within which the election has been or should have been held for the determination of such question."

This provision is similar to Art. 329 which bars the courts to interfere in electoral matters.

According to the petitioners, it was argued that they have correctly invoked the jurisdiction under Art. 226. It was argued that filing of election petition under sec. 15 of the Act is not an efficacious remedy for the petitioners whose nomination forms are rejected.

Submission of the Amicus Curiae

Mr. Anturkar, amicus curiae in the matter, relied on the constitution bench judgment of the Apex Court in N.P. Ponnuswami v. The Returning Officer, Namakhal Constituency (1952) wherein it was held that a petition under Art. 226 challenging improper rejection of nomination cannot be entertained.

He further relied on the judgment of Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner (1978) and submitted that a writ petition being not maintainable is different from the writ petition not being entertained.

Furthermore, he submitted that a petition under Art. 226 can be filed for rejection of nomination papers if the rejection was done an insignificant ground covered under the Bombay Village Panchayat Election Rules, 1955 or where the ground cannot be covered by any statutory provision.

Submission of the State Election Commission

It was argued by Adv. Shetye, appearing on behalf of State Election Commission, that election is a creature of the statute. The right to vote as also right to contest election are statutory rights and in the present case are governed by the MVP Act and the Bombay Village Panchayat Election Rules, 1959. Therefore, he submitted that it is neither a civil right nor the fundamental right of the petitioners, even to raise a grievance by approaching this Court under Article 226 of the Constitution.

Accordingly it was also submitted that the Returning Officer is under a mandate not to reject any nomination paper on the ground of defect, which is not of a substantial character. He submitted that presently there are 14,244 villages which are at a advanced stage of election process and admitting the petitions under Art. 226 which be contrary to constitutional mandate and decision of N.P. Ponnuswami case.

Final Observations of the Bench

The bench analyzed the judgment in the case of N.P. Ponnuswami at length and observed that a writ petition could be barred if it seeks to call in question a step in election, but if the approach to the Court is to facilitate free and fair completion of election, such approach would not be barred.

"The imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Courts writ jurisdiction. The more imminent such process, the greater ought to be the reluctance of the High Court to do anything, or direct anything to be done, which will postpone that process indefinitely by creating situation in which the Government of a State cannot be carried on in accordance with the provisions of the Constitution." The bench held.

In dealing with the conflict between two landmark judgments namely N.P. Ponnuswami and Mohinder Singh Gill, the bench referred to the most recent judgment on the issue in Laxmibai v. Collector, Nanded (2020) wherein the Supreme Court held that it is a prudent discretion to be exercised by the High Court not to interfere in the election matters, especially after declaration of the results of the elections but relegate the parties to the remedy contemplated by the statute.

Therefore the bench while analyzing the common thread in these judgments, held that "in respect of challenge laid to an electoral process or any step connected therewith before the result of elections, covered by Part XV of the Constitution is declared, the door of the writ jurisdiction of a High Court would stand closed if any order were sought and rendered which has the tendency or effect of interrupting or posting a reasonable imminent poll."

The bench held that the bar under Art. 243-O(b) would spring in when the HC is approached under Art. 266 for examining the rejection of nomination papers with respect to elections under Part IX. "Whatever be the reason for rejection of nomination, its quality ~ sub-standard or otherwise ~ is neither material nor relevant when the challenge is laid at an intermediate stage of the election by an intending candidate seeking orders from the Court to participate in the election though the Returning Officer has rejected his nomination."

On the point of conflict between Art. 243-O and Sec. 15A of the Act, the Court clarified that the Sec. 15A derives itself from Art. 243-O and therefore so long as Article 243-O stands, section 15A would also stand.

Thereafter, the bench also analyzed the questions as to whether there is any remedy to an aggrieved voter or any candidate who wishes to call in question the validity of any election of a member of a Panchayat. The bench held that Sec. 15(1) and (2) of the Act provides the a remedy in law wherein it states that validity of any election could be brought in question before the Judge and thereafter the relief would be given by him.

"We, thus, conclude that the MVP Act, a complete code in itself in relation to Panchayati Raj in Maharashtra, does provide the necessary machinery for vindication of ubi jus ibi remedium and for appropriate redressal of grievance of any disgruntled individual who perceives that he has been wronged by the Returning Officer." The bench held.

The bench answered the questions of reference in the following manner:

• Allowing a challenge in a writ petition to rejection of nomination form to contest an election and granting the relief claimed by setting aside such order of rejection is definitely not a step to sub-serve the progress of election and/or facilitate its completion as laid down in Mohinder Singh Gill and Ashok Kumar though it may not always amount to intervention, obstruction or protraction of the election.
• Article 243-O(b) is a bar for entertaining a writ petition under Art. 226 against an order passed by the Returning Officer rejecting nomination paper.
• The law laid down in Vinod Pandurang Bharsakade represents the correct view.
• Decisions of the division bench in Sudhakar s/o Vitthal Misal and Smt. Mayaraju Ghavghave do not lay down the correct law.

Case Name: Karmaveer Tulshiram Autade & Ors. v. State Election Commission & Ors.

Judgment Dated: 13.01.2021