JUDGMENT V.C. Daga, J.
1. Rule returnable forthwith.
2. Learned Counsel appearing on behalf of the respondent waives service. By consent taken up for hearing and final disposal.
3. This petition is directed against the action of the respondent Returning Officer, rejecting nomination form of the petitioner for the election to the post of member of the Maharashtra State Veterinary Council (the Council for short) for the year 2007 with further direction to accept the nomination form of the petitioner so as to enable him to contest the election to the post referred to herein above.
Factual Aspects:
4. The petitioner is a registered veterinary practitioner on the register of the Council vide Registration No. MSVC 2549 holding registration certificate. In the said certificate, the name of the petitioner is mentioned as "Dr. Mohd. Talib Mohd. Sadique".
5. The respondent-Returning Officer on 16-1-2006 published the final electoral roll for the purposes of the elections to the four posts of the Council in the State electoral roll. The name of the petitioner appearing at Sr. No. 592 mentioned as "Dr. Mohammad Talib Mohd. Sadique ".
6. The respondent on 2-1-2007 published notice of election to the post of member of the Council under Rule 3(8)(i) of the Maharashtra State Veterinary Council Rules, 2005 (the Rules for short). The petitioner on 3-1-2007 has submitted his duly filled in form of nomination in the prescribed format for the post of member of the Council. In the form of nomination, the name of the petitioner was mentioned as, "Mohd. Talib Mohd. Sadique ".
7. The respondent published the list of the candidates whose nomination forms were accepted and of those whose nomination forms were rejected. The name of the petitioner was shown at Sr. No. 1 in the list of the candidates whose nomination forms were rejected and against the name of the petitioner the reason of rejection is that the name of the petitioner does not tally with the name mentioned in the voters' list and the office record of the Council.
8. The petitioner on 15-1-2007 made representation to the respondent-Returning Officer pointing out the mistake committed by the respondent in rejecting the nomination paper of the petitioner. In the aforesaid representation the petitioner mentioned the above stated facts and also stated that "Mohd" is the abbreviation of the name "Mohammad" and prayed for reconsideration of his decision.
Submissions:
9. Mr. Chandurkar, learned Counsel appearing for the petitioner urged that the alleged defect in the nomination form noticed by the Returning Officer is a technical defect. The identity of the petitioner was never called in question. According to him in the nomination paper the name of the petitioner was mentioned as "Mohd." whereas the voters' list mentioned the name as "Mohammad". According to him "Mohd." is short form of "Mohammad" which is well recognized in the Muslim community. In his submission, it is of common knowledge that "Mohd." is the abbreviation of the name "Mohammad". He thus submitted that the defect was not of a substantial nature, and therefore, the nomination form could not have been rejected by the respondent-Returning Officer. He prayed that the action of the respondent be set aside and the petitioner be allowed to take part in the election by declaring that his nomination form was in accordance with law with further direction to the Election Officer to permit the petitioner to take part in the election process. He placed reliance on the judgment of the Apex Court in the case of Harikrishna Lal v. Babu Lal Marandi and the judgment of the learned Single Bench of this Court in the case of Indumati Laxman v. State of Maharashtra .
10. Mr. Amol Patil, Advocate tried to support the impugned action of the Returning Officer contending that the name of the petitioner written on the nomination form did not tally with the name appearing in the voters list. He further submits that the address of the petitioner also does not tally with that of the voters list. He urged that as per the Elections Rules the election dispute can be lodged within 15 days of declaration of the results of the election and that it can be referred to the Government of Maharashtra for decision under Section 37 of the Indian Veterinary Council Act, 1984 which is required to be treated as final and binding. He, thus, submits that at this stage, this Court should not exercise writ jurisdiction in favour of the petitioner.
The Issues:
11. The rival submissions have given rise to the following issues;
(i) Whether the respondent could have rejected the nomination form of the petitioner as it is of common knowledge that the name, "Mohd" is the abbreviation of the name "Mohammad" ?
(ii) Could it be said to be a defect of substantial nature, especially, when there is no dispute regarding the identity of the person?
(iii) Whether this Courts should exercise writ jurisdiction at this stage?
Consideration:
12. So far as the validity of the reason for rejection of nomination papers of the petitioner is concerned, the defect sought to be pointed out by the respondent-Returning Officer leading to the rejection of the nomination form can hardly said to be a defect of substantial nature. The name of the petitioner shown in the voters' list is "Mohammad" which is a full form of the name "Mohd". It is a fact that "Dr. Mohd. Talib" and "Dr. Mohammad Talib" is one and the same person i.e. petitioner. The enrolment and registration number of the petitioner is 2549 dated 26-6-2002 which tallies with that of the number appearing in the voters list. In this circumstance, the submission advanced by Mr. Chandurkar that considering the alleged minor defect in the nomination form, the same could not have been rejected by the respondent.
13. In the case of Ram Avadhesh Singh v. Smt. Sumitra Devi AIR 1974 SC 580 the Apex Court ruled that; misdescription as to electoral number of the candidate or the proposer in the nomination paper is not a defect of a substantial character. One Ram Avadesh Singh had been contesting from Arrah constituency for a number of years before 1968. His name was registered as an elector in the other constituency of Sandesh in Bihar State. The name continued to be on the electoral roll of that constituency up to the date he filed his nomination paper from the Arrah constituency on January 6, 1969. It appeared that in 1968, his name was also entered in the electoral roll of Arrah constituency but, later on, the same was deleted, evidently because his name stood entered in the Sandesh constituency. Deletion had been done without notice to him. Ram Avdhesh Singh came to know at the time of filing of the nomination paper, that his name was also entered in the Arrah constituency. However, he did not know that the name had been later on deleted. In the nomination paper he entered the electoral roll of Arrah constituency. At the time of scrutiny he had with him certified copy of electoral roll of Sandesh constituency but no one raised any objection and the nomination paper was accepted by the Returning Officer. Ram Avadesh Singh secured majority of votes at the election and was declared successful. Election petition was filed against him and one of the grounds was that the misdescription as to the electoral number of the candidate in the nomination paper was a material defect and the nomination ought to have been rejected. The High Court accepted the contention of the election petitioner and set aside the election. On appeal, the Supreme Court held that misdescription as to the electoral number of the candidate and the proposer in the nomination paper was not to be considered as a material defect in the nomination paper."
14. This Court, in the case of Namdeo Chimnaji Tapre v. Govinddas held that; where there was a difference in the surname as given in the nomination paper and in the electoral rolls, the Returning Officer ought to have permitted the candidate to correct the error as one of misdescription. It was not a defect of substantial nature either.
15. In the case of Lila Krishna v. Mani Ram Godara the Apex Court ruled that; mistake in mentioning the serial number of proposer of the candidate in electoral roll can be permitted to be corrected or may be overlooked by the Returning Officer at the time of scrutiny if the candidate, his election agent or any interested and competent person assists in establishing proper identification of the proposer. In the absence of proper identification, the Returning Officer is justified in rejecting the nomination paper.
16. In the case of Jagannath v. G.G. Kadam the Returning Officer had rejected the nomination of the appellant on the ground that the certified copy of electoral roll produced by him was defunct as according to his own information the electoral roll was published subsequently to the one from which certified copy was produced. The Returning Officer did not secure and place the necessary material before the appellant before rejecting his nomination. On facts also the objection was found wrong and there was no default of the appellant. It was held that rejection was improper and election was declared void under Section 100(1)(c) of the Representation of the People Act.
17. The Apex Court in the case of Battan Anmol Singh v. Atma Ram ruled that; if the defects are substantial, the nomination has to be rejected. If not they are immaterial.
18. The Apex Court in recent judgment in the case of Harikrishna Lal v. Babulal Marandi (supra) also reiterated the aforesaid legal position. In that case, the nomination paper of the returned candidate mentioned his name as "Babu Lal Marandi". In the voters list his name was Babu Marandi. Mr. Justice R.C. Lahoti speaking for a Bench of two learned Judges of the Supreme Court observed thus:
It is well known that in the Indian society, the name of a person consists of the first name, the second name and the surname are the family names. The first name and the family name of the respondent tallied, the second name was mentioned in the nomination paper but was not found to be mentioned in the voters' list. According to the plea taken in the written statement, all other descriptions such as the father's name, age, sex and residence etc. of the respondent as given in the voters' list and as appearing in the nomination paper tallied. There was thus no defect in the nomination paper.
The Supreme Court held that the omission of the second name "Lal" from the voters' list was inadvertent or accidental or in any case merely technical. There was no doubt about the identity of the respondent. In the present case, for the reasons already indicated, the Additional District Judge was correct in coming to the conclusion that the reference to the surname as Balwante was merely a printing or an inadvertent error. As in the case before the Supreme Court there was absolutely no doubt about the identity of the voter. The first name, the name of the father, age, sex and residential address all tallied and were correct. The finding that he is a voter and is entitled to maintain an election petition does not therefore, warrant interference.
19. In view of the aforesaid discussion, we have to come to the conclusion that the nomination paper did not suffer from any material defect. The identity of the candidate was and is not in dispute. The defect in the nomination form was not of any substantial nature warranting rejection of the nomination paper. The Returning Officer was, therefore, not justified in rejecting the nomination form of the petitioner.
20. Having said so, let us turn to the objection raised by Mr. Patil regarding tenability of the writ petition and availability of the alternate remedy. It is no doubt true that 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.
21. In the above backdrop, let us examine whether this case would fall in the exception warranting exercise of writ jurisdiction. In the factual scenario of the case sketched herein-above, it is clear that no disputed questions of facts are involved in the instant case. The identity of the person is not in dispute. It is not uncommon "Mohd." is an abbreviation of the word, "Mohammad". There was hardly any justification of the Returning Officer to reject the nomination form of the petitioner. The petitioner has established iron-cast case.
22. Once the election process is allowed to be completed and then dispute of the instant nature is allowed to be raised, the possibility of entire election getting set aside in the peculiar facts of this case cannot be ruled out. One has to bear in mind that there is, however, a vital difference between improper rejection and improper acceptance of a nomination. In the former case the entire electorate is deprived of its right to vote for a candidate who was qualified to stand. In the latter case, all the candidates including the unqualified one, usually compete at the polls and the electorate gets an opportunity of voting for a candidate of its choice. Under these circumstances, this is a proper stage wherein the mistake committed by the Returning Officer needs correction instead of placing the entire election process in jeopardize after completion thereof.
23. The instances of preventing a bona fide contestant by rejecting nomination form on the technical ground are not uncommon. It is also not unknown that the illegally elected body, most of the time, completes its tenure in the office even before the election dispute is decided on merits because most of the time or invariably the Courts by way of self imposed discipline refuse to interfere with the election process at the interim stage once the same is set in motion. This self imposed discipline of the Courts some times permits the illegal bodies to hold office until the expiry of their tenure. It also results in allowing malpractices in election to stand till the election dispute is resolved finally by the Court. Self imposed discipline not to interfere with the election process sometimes tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour.
24. The relief sought in this petition can be granted in favour of the petitioner without interrupting, obstructing or dealing with the election proceedings. Thus, taking overall view of the matter, no prejudice would be caused to either of the parties to the election or election process involved in the election if this Court intervenes at this stage, sets aside the order of the Election Officer and allows the petitioner to take part in the election process. Hence, for the reasons stated herein, the objection raised by Mr. Patil with respect to the exercise of the writ jurisdiction of this Court in favour of the petitioner, at this stage, is liable to be overruled.
25. In the result, the action or decision of the Returning Officer to reject the nomination form of the petitioner is quashed and set aside. He is directed to accept the nomination form of the petitioner for contesting election to the post of member of the Maharashtra State Veterinary Council with further direction to permit him to take part in the entire election process. Petition is allowed. Rule is made absolute in terms of prayer Clause (a) with no order as to costs.
26. Parties to act upon the authenticated copy of this order.