The Hon'ble Apex Court in the case of Election Commission of India, through Secretary, Appellant v. Ashok Kumar & others, respondents, reported in MANU/SC/0540/2000 : AIR2000SC2979 , has in paragraphs 32 and 33 held as under:
"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 proceeding 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 proceeding 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 the judicial review on the well settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide 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 proceeding, 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 utilise the Court's indulgence by filing a 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 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.
These conclusions, however, should not be construed as a summary of our judgment. These have to be read along with the earlier part of our judgment wherein the conclusions have been elaborately stated with reasons."
9. The Hon'ble Supreme Court has held that if the election is called in question and when such questioning may have the effect of interrupting, obstructing or protracting the election proceeding in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings of election. Needless to say that the petitioner has an alternate remedy of filing an election petition challenging the said elections.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Writ Petition No. 3980 of 2001
Decided On: 03.12.2001
Rekhabai Vs. State Election Commission and Ors.
Hon'ble Judges/Coram:
V.M. Kanade, J.
Citation: 2002(2) ALL MR 742, MANU/MH/0884/2001.
1. Heard the parties. Rule returnable forthwith with the consent of the parties.
2. By this petition the petitioner is challenging the order passed by the Returning Officer rejecting the nomination form filed by the petitioner, which has been confirmed by the Additional District Judge, who is the Appellate Authority under Rule 15.
3. The brief facts of the case are that the said Election Commission declared the election programme in respect of the elections of Municipal Councils and accordingly date of nomination for the post of President of Municipal Council, Sindi (Railway) was fixed on 12-11-2001. The post of President of Municipal Council, Sindi (Railway) is reserved for woman (open) and as such the petitioner was entitled to contest the election to the post of President, even as per the said reservation. Accordingly, the petitioner filed three sets of nomination form for the post of President. The date for scrutiny of the nomination forms was fixed on 13-11-2001. On the said date, the petitioner was not present in person at the time of scrutiny. The nomination form of the petitioner was however rejected and while passing the said order, the Returning Officer observed that the nomination form Part A was not signed by her and, therefore, it was rejected.
4. Against the said order of rejection, the petitioner filed the statutory appeal provided under Rule 15 of Maharashtra Municipal Election Rules, 1966 and the said appeal was filed within the limitation. The Additional District Judge, who is an Appellate Authority under Rule 15 heard the parties and rejected the appeal.
5. The petitioner has challenged the said order passed by the Returning Officer and confirmed by the Additional District Judge, rejecting the said nomination paper. It is submitted by Shri Chaudhary, learned Counsel appearing on behalf of the petitioner that the petitioner had not signed the said nomination paper because the nomination form was not properly printed. He further submitted that normally the signature on Part A on the nomination form is at the bottom of the said nomination form. In this case the signature was on the next page at the right hand corner on the top of the nomination form and, thereafter, the Part B of the nomination paper started and in the middle of the said page 2 the signature of the contesting candidate was mentioned and, therefore, it is his case that the petitioner had signed on the said Part B and inadvertently the signature on Part A was not signed. He further submitted that it was the duty of the Returning Officer to point out the place where the signature was to be put on Part A. He further submitted that for this mistake the petitioner could not be penalised. He further submitted that the petitioner had signed on Part B of nomination form. Further she had also filed the affidavit alongwith the nomination form which was duly affirmed before a competent authority and the proforma of the information was also duly affirmed and annexed alongwith the affidavit. He submitted that therefore merely because Part A of the nomination form was not signed, it could not be construed as a defect of a substantial nature and, therefore, the Returning Officer had committed an error, which error was repeated by the Additional District Judge. Mrs. Wandile, AGP, appearing on behalf of the Returning Officer, submitted that non signing on the nomination form was a substantial defect and, therefore, he had rightly rejected her nomination form. She further submitted that the nomination of two other candidates who had not signed the nomination form, had also been rejected by the Returning Officer and his action was not mala fide and was according to the rules. She further submitted that the writ petition under Articles 226 and 227 of the Constitution of India was not maintainable in view of the judgment of the Apex Court in the case of Anugraha Narayansingh v. State of U.P., reported in MANU/SC/1252/1996 : (1996)6SCC303 . She submitted that the election process had already started and the ballot papers were already printed and the election was to be held on 9th of December, 2001 and in view of this, if the nomination paper of the petitioner was accepted at this stage, the entire process of election would have to be restarted and the schedule will have to be refixed. She further submitted that the ballot papers will have to be reprinted which may take 15 days and, therefore, she submitted that the writ petition should be rejected.
6. Shri A.B. Chaudhary, Counsel appearing on behalf of the petitioner, submitted that the writ petition was maintainable under Articles 226 and 227 of the Constitution of India, in view of the judgment of the Apex Court reported in MANU/SC/0540/2000 : AIR2000SC2979 , Election Commission of India, through Secretary v. Ashok Kumar & others. He submitted that the Constitution Bench of the Hon'ble Supreme Court had held that the writ petition under Article 226 of the Constitution of India was maintainable. He further pointed out that in the said judgment, the Apex Court had taken into consideration the earlier judgment in the case of Anugraha Narayansingh v. State of U.P. and thereafter, had held that a writ petition was maintainable, under certain circumstances which are more particularly summarised in paras 32 and 33 of the said judgment.
7. In my view, so far as the preliminary objection raised by the respondent is concerned regarding the maintainability of the writ petition, the same is liable to be rejected in view of the judgment of the Apex Court in Election Commission of India, through Secretary v. Ashok Kumar & others MANU/SC/0540/2000 : AIR2000SC2979 wherein the Hon'ble Supreme Court has categorically held that under certain circumstances, a writ petition under Article 226 of Constitution of India would be maintainable. I, therefore, hold that the writ petition under Article 226 of Constitution of India is maintainable.
8. However, considering the fact that the election process is almost over and also considering the admitted position that the petitioner has not signed the nomination paper. I feel that this is not the case which calls for interference under Articles 226 and 227 of the Constitution of India. The Hon'ble Apex Court in the case of Election Commission of India, through Secretary, Appellant v. Ashok Kumar & others, respondents, reported in MANU/SC/0540/2000 : AIR2000SC2979 , has in paragraphs 32 and 33 held as under:
"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 proceeding 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 proceeding 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 the judicial review on the well settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide 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 proceeding, 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 utilise the Court's indulgence by filing a 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 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.
These conclusions, however, should not be construed as a summary of our judgment. These have to be read along with the earlier part of our judgment wherein the conclusions have been elaborately stated with reasons."
9. The Hon'ble Supreme Court has held that if the election is called in question and when such questioning may have the effect of interrupting, obstructing or protracting the election proceeding in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings of election. Needless to say that the petitioner has an alternate remedy of filing an election petition challenging the said elections.
10. In view of the above, the writ petition is rejected. Under the circumstances, there shall be no order as to costs.
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