Sanjay Sadashiv Patil vs State Of Maharashtra Through ...
2008 Latest Caselaw 120 Bom

JUDGMENT

A.H. Joshi, J.

1. On 20th February, 2008, the present petition was listed for admission-hearing, when, on hearing the petitioner's Advocate and learned Asstt. Govt. Pleader, this Court had passed interim order with liberty to the respondents to apply. Accordingly, respondent No. 4 has appeared and filed application for vacation of interim order.

2. Parties agree that question involved pertains to interpretation of rules and effect of certain judgments, and, therefore, the petition can be taken up for final disposal at the stage of admission-hearing itself. Hence Rule. Rule is made returnable forthwith and heard finally by consent.

FACTS

3. The subject-matter of this petition pertains to elections to the Agricultural Produce Market Committee, Malkapur. The election programme was published. The petitioner and the respondent No. 4 were amongst the contesting candidates from the Seva Sahakari Sanstha category within the class Agriculturists.

4. Petitioner's nomination paper has been rejected relying upon the prohibitory clause contained in Sub-rule [2] of Rule 45 of the Maharashtra Agricultural Produce Marketing [Regulation] Rules, 1967. Sub-rule [2] of Rule 45 of the said Rules reads as follows:

45. ...

[1] ...

[1-A] ...

[2] Any person who is not subject to any disqualification as a voter under these rules and whose name is entered in the list of voters for the constituency for which the candidate is nominated may subscribe as proposer or seconder. He shall not subscribe as proposer more than one nomination paper.

5. The petitioner herein, who was aggrieved by the said order, preferred an appeal under Rule 51 of the Maharashtra Agricultural Produce Marketing [Regulation] Rules, 1967. The appeal has been rejected. The petitioner is before this Court challenging the said orders.

6. Petitioner is seeking the relief, namely that by quashing the decision of the Returning Officer and Appellate Forum and that the petitioner be permitted to participate in the election.

7. As per the Election Programme, the schedule prescribed is as follows:

[a] 8-2-2008.... Date of Scrutiny.

[b] 11-2-2008.... Date of publication of list of validly nominated candidates.

[c] 18-2-2008.... Dates fixed for filing appeal, if any.

[d] Date for withdrawal of nomination:

13-2-2008...when appeal is not preferred.

21-2-2008...when appeal is preferred.

[e] 22-2-2008.... Date of publication of final list of candidates contesting election.

[f] 9-3-2008.... Date of polling.

[g] 11-3-2008.... Date of counting.

As to jurisdiction of a Single Judge to try this petition:

8. At the outset, learned Senior Advocate Mr. M.G. Bhangde raised a point as to jurisdiction of a Single Judge to hear and decide present petition. For this purpose, reliance is placed on the text of Clause [4] of Rule 18 of Chapter-XVII of the Bombay High Court Appellate Side Rules [hereinafter referred to, for brevity, as Rules], in contrast with the text of Clause [3] thereof.

9. According to learned Senior Advocate Mr. M.G. Bhangde, admittedly, the order impugned is passed in appellate jurisdiction. Appellate jurisdiction is a matter governed by Clause [4] of Rule 18. Original orders are, on the other hand, governed by Clause [3] of Rule 18. It is urged that when Clause [3] was amended and the words or by any Quasi Judicial Authority were added in it, these words were not added in Clause [4]. According to learned Senior Advocate Mr. Bhangde, this omission is a conscious omission, and failure to incorporate these words in Clause [4] would essentially exclude the decision or order rendered in exercise of appellate powers from the powers and the jurisdiction of a Single Judge of this Court.

10. This submission is opposed by learned Advocate Mr. P.C. Madkholkar by urging that import and intention underlying Rule 18 of Chapter-XVII of Rules will have to be seen. It is then urged that if the objection raised by the respondent No. 4 is accepted, it will create an anomalous position. Thereby original orders would be subjected to jurisdiction of a Single Judge, while appellate or revisional orders arising from the same order would go before Division Bench, which is not the scheme of Rule 18 taken in its entirety.

11. This Court has perused the scheme of Rule 18 of Chapter-XVII of Appellate Side Rules. The scheme is to put within the jurisdiction of a Single Judge to undertake Judicial Review of orders and proceedings decided in exercise of quasi-judicial or judicial power in the proceedings under Laws listed therein, including various local laws.

From the face of it, it is seen that the word proceedings is used in Clause [3]. The word proceedings, unless excluded specifically, has to comprehend proceedings even before Appellate Forum, but for existence of Clause [4]. The language used in Clause [3] would seem restrictive when read with Clause [4].

12. Considering the scheme of Rule 18, it is necessary to advert to Clause [44] of Rule 18, which reads as follows:

18. Single Judge's powers to finally dispose of applications under Article 226 or 227.-...

[1] to [43]...

[44] Deleted.

May be heard and finally disposed of by a Single Judge appointed in this behalf by the Chief Justice:

Provided when the matter in dispute is or relates to the challenge to the validity of any statute or any rules or regulations made thereunder, such applications shall be hard and disposed off by a Division Bench to be appointed by the Chief Justice.

Explanation.-The expression order appearing in Clauses [1] to [41] means any order passed by any judicial or quasi judicial authority empowered to adjudicate under the abovementioned statutes.]

Language employed in the Explanation to Clause [44] is inclusive category and not of restrictive category. The text of said Explanation will have to be read as a residuary clause which would act to remove all doubts and include all orders of the class or categories referred to in it. In view of this, this Court finds that Clauses [3], [4] and Explanation to Clause [44] will have to be read together and in consonance with one another.

13. In the result, it would be inappropriate to construe that the original authority's orders can be subject to a judicial review by a Single Judge, however, the order of Appellate or Revisional Forum would not be subjected to judicial scrutiny of a Single Judge, particularly when Clause [44] of Rule 18 in one sweep includes various orders of same class within the powers of a Single Judge all matters including orders passed under Appellate or Revisional powers by authorities under local or special laws. This renders Clause [4] of Rule 18 redundant.

14. Considering this aspect of the matter, this Court holds that subject-matter of present petition comes within the jurisdiction of a Single Judge. The objection as to lack of jurisdiction to a Single Judge to hear and decide this petition is, therefore, overruled.

AS TO MERIT

15. In Paragraph 4 of the petition, the petitioner has narrated grounds and reasons as to how the nomination was wrongly rejected, and was bound to be accepted.

According to the petitioner, the prohibition to propose incorporated in Sub-rule [2] of Rule 45 of the said Rules is liable to be read as prohibition applicable to one 'candidate' in one 'category' only. It is then urged that said prohibition would not preclude a proposer from proposing more than one candidates from different categories in one and same constituency or class or candidates in different constituencies.

16. On facts, it is urged that the second candidate to whom the petitioner's proposer had proposed, namely Sheshrao Adhaw is also withdrawn.

17. It is further urged that the rule cannot be read in such a fashion that it would defeat the very purpose, since the rule would be capable of abuse, as a proposer can be managed/misled to propose one more candidate and thereby destroy proposal formerly made by him, and this could not be a scheme of law, as law cannot be allowed to be read or interpreted to be gullibly used.

18. It is lastly urged that construction of rule as sought to be done by the petitioner would not fall within the jurisdiction of Election Tribunal as the Tribunal would be guided by literal construction of text and this would result in delay and injustice, and that question involved is obvious no purpose of justice would be served in sending the petitioner to Election Tribunal. Learned Advocate Mr. Madkholkar then urges that on the plain reading of rule, it would be difficult for the Election Tribunal to hold that the rejection of nomination paper was wrong on facts. The question involved is, thus, one purely of law, and that too capable of adjudication by this Court, and therefore, that present petition be entertained and relief be granted.

19. In support of petition, learned Advocate Mr. P.C. Madkholkar relied on following Judgments:

[a] Dattatraya Kachru Chine and Ors. v. State of Mah. and Ors. ,

[b] Karbhari Maruti Agawan and Ors. v. State of Mah. and Ors. 1994 Mh. L.J. 1527,

[c] Pundlik v. State of Maharashtra and Ors. (2005) 7 SCC 181,

[d] Ahmednagar Zilla S.D.V. and P. Sangh Ltd. and Anr. v. State of Mah. and Ors. , and

[e] Ravi Amrutrao Bagde v. Commr., Amravati Division and Ors. ,

20. Reliance is placed by learned Senior Advocate Mr. M.G. Bhangde for respondent No. 4 on the precedents,namely:

[i] S.T. Muthusami v. K. Natarajan and Ors. ,

[ii] Avtar Singh Hit v. Delhi Sikh Gurdwara Management Committee and Ors. ,

[iii] Ramesh Rajaram Patil and Ors. v. Shivaji Kachru Patil and Ors. ,

[iv] Digambar Sadashiv Ghorpade and Ors. v. Election Registration Officer, Kolhapur and Ors. , and

[v] Dayanand Vedic Vidhalaya Sanchalak Samiti v. Education Inspector, Greater Bombay and Anr. .

21. It is further urged by learned Senior Advocate Mr. M.G. Bhangde that the relief sought and granted at interlocutory stage is in the nature of a final relief, which ought not to have been granted. For this purpose, reliance is placed on the reported Judgment of Supreme Court in case of Union of India and Ors. v. Modiluft Ltd. . This aspect,however, need not be dealt with in view that the petition is being heard and decided finally.

22. The petition has been opposed, urging that:

[a] the rule will have to be read as it stands.

[b] The language of the rule cannot be expanded or escalated by reading something which is not comprised in it, and that

[c] since election process has already commenced, no interference is permissible.

23. It is urged that it is abundantly clear that once the process of election is set in motion, any interference, whatsoever, therein is not permissible, and the remedy of election is the only course of challenge available.

24. Last submissions opposing the petition are that:

[a] when a constituency has to elect more than one candidates, the candidates to be elected would be on the basis of maximum number of votes polled.

[b] There would be hardly any distinction between the candidates from different categories in one constituency than having many candidates in one constituency only.

For this purpose, reliance is placed on the Judgment of Hon'ble Supreme Court in the case of V.V. Giri v. Suri Dora .

25. This Court has perused the petition, gave due consideration to submissions and read the judgments cited at bar.

26. It can safely be concluded as to what the law on the point as to restraint against entertaining Writ Petition is well-settled.

27. In relation to matters of offices which are governed by the Constitution of India, and Representation of People Act or in relation to Local Self-Governments, it is clear that there is a constitutional bar of interference in the process of election. Any grievance in relation to the electoral process, including the results, has to be by way of a challenge before the Election Tribunal as constituted under the Act concerned.

28. It is also seen that the principle as applicable to offices positions in Legislative Bodies or Executive Bodies of Local Self-governments or some Statutory Bodies has been followed in relation to other non-statutory bodies, including Co-operative Societies.

29. In so far as elections to various Committees under the Maharashtra Co-operative Societies Act are concerned, even in relation thereto, in cases of [1] Avtar Singh Hit v. Delhi Sikh Gurdwara Management Committee and Ors. [cited supra], and [2] Sadguru Sant Janardhan Swamy [supra], Hon'ble Supreme Court took a view in keeping with the line as seen in case of S.T. Muthusami [cited supra].

30. In contrast with what has been held by Hon'ble Supreme Court and without any cause of dissent in case of Sant Sadguru Janardhan Swami [supra], in cases, namely:

[a] Pundlik v. State of Mah. and Ors. , and

[b] Ahmednagar Zilla S.D.V. and P. Sangh Ltd. and Anr. v. State of Mah. and Ors. , Hon'ble Apex Court has taken a slightly different and deviating line being warranted by facts as involved. In these two cases, judicial interference prior to conclusions of polls and rather amidst the election process was granted.

31. In Pundlik's case [supra], what Hon'ble Supreme Court observed at the end of para 9 of the Judgment is as follows:

9. ...It is true that according to this Court, normally the High Court would not interfere in exercise of powers under Article 226 of the Constitution at the stage of preparation of list of voters but such action must be in accordance with law....

Language employed in this part of judgment quoted above, though in negative format, in fact, suggests that since the process was not in accordance with law, interference in process was done.

32. In the latter case of Ahmednagar Zilla S D. V. and P. Sangh Ltd. [supra], indulgence was granted on the ground that illegality referred pertains to the matters which could not have been gone into in the process of election, though by virtue of Rule 81, any illegality may have been a matter of challenge to election under Section 144T of the Maharashtra Co-operative Societies Act which was the provision involved in that case. Rule 81 of the Maharashtra Specified Co-operative Societies Election to Committees Rules, 1971, reads as follows:

81. Grounds for declaring election to be void.-If the Commissioner is of opinion

[a] that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under these rules, or

[b] that any corrupt practice has been committed by a returned candidate or his Election Agent or by any other person with the consent of a returned candidate or his Election Agent, or

[c] that any nomination paper has been improperly rejected or

[d] that the result of the election, in so far as it concerns a returned candidate, has been materially affected

(i) by the improper acceptance of any nomination, or

(ii) by any corrupt practice committed in the interest of the returned candidate by an agent other than his Election Agent, or

(iii) by the improper reception, refusal or rejection of any vote or the reception, of any vote which is void, or

(iv) by any non-compliance with the provisions of the Act or any rules made thereunder. the Commissioner shall declare the election of the returned candidate to be void.

[Emphasis is supplied for magnifying the compass.]

33. Petitioner's reliance on the reported Judgment of Division Bench of this Court in the case of Dattatraya Kachru Chine and Ors. v. State of Mah. and Ors. is in order to demonstrate that in spite of the consistent line of noninterference in the process of election, yet, when seen in the facts of the case on hand, the disputed question went deep root to such an extent that a large number of persons entitled to vote were excluded from the process of voting, which, in turn, though not termed by the said Court as a result of rigging the election and in this background, in order to achieve the ultimate ends of justice of a guarantee of fair election, and in view of consistent line of judgments including the reported Judgment in case of Satguru Sant Janardhan Swamy, the Division Bench of this Court granted indulgence. This Court, in order to grant indulgence, observed in para 23 as follows:

23. The above decision.... The dispute basically pertains to the action on the part of the statutory authority which is taken contrary to the statutory provisions divesting the petitioners and others from their right to continue to be the members of the respondent No. 4 Society....

34. The deviating line, which Hon'ble Apex Court as well as this Court have taken in relation to the elections under the provisions of Maharashtra Cooperative Societies Act, seems to be aimed at nipping in the bud an illegality, in order that even further recourse to such ground, subject-matter of challenge, could be overcome.

The ultimate idea appears to be ensuring fair and proper elections.

35. There is one more reason as to why this Court should act on the lines of what is done by Hon'ble Apex Court in case of Ahmednagar Zilla S D. V. and P. Sangh Ltd. This aspect is: when Election Petition would be filed, the Election Tribunal would ordinarily be guided by plain text of rules. The issue in present Election Petition would be whether the nomination of the petitioner is rightly rejected?, looking to the text of Rule 45 [2], subject matter, since only one nomination is to be proposed by one person. Like an arithmetic equation, the rejection of nomination paper of the petitioner would be prima facie correct. What this Court is persuaded to do is construing Rule 45 [2] of the Maharashtra Agricultural Produce Marketing [Regulation] Rules, 1967, thereby holding that one proposer would mean one proposer in one category, but not only one candidate in different categories.

36. The aforesaid aspect of the matter, i.e., laying down law by interpretation, would be a scope outside the power and jurisdiction of the Election Tribunal. In this background, entertaining a petition would not be hit by any of the guidelines flowing from line of Judgment opposing maintainability of Writ Petition, and would fall in the exception where this petition would be entertained.

37. Coming to the facts of the case, though an allegation of rigging etc., is not involved, the fact remains that the manner in which rejection of nomination paper has been done is on account of the subscription to the nomination paper as proposer which was done by one person in favour of two persons.

38. Admittedly, subject constituency is such that it has to elect various agriculturists as members and within the said constituency from different categories are to be elected.

39. Just because a candidate belonging to reserved category has a chance of getting elected against open category in the event he secures less number of votes in his own category, will by itself not preclude the nomination of persons of different categories being done treating the language used in Sub-rule (2) of Rule 45 prohibiting proposing of as plural nominations of candidates in different categories in one constituency. This Court is of considered view that the spirit of law will have to be seen and not barely letters, in distraction from the context.

40. Considering this aspect of the matter, rejection of petitioner's nomination has certainly to result into unopposed election of the respondent No. 4. On the other hand, acceptance of nomination would, as per the election programme, lead to holding of election on due date as scheduled. Now, the election would proceed and petitioner as well as respondent No. 4 will have to face the election. Had the petitioner been thrown out of fray of election, on 22nd February, 2008, when the final list of candidates is published, on that day, the respondent No. 4 was bound to be declared elected unopposed. At this stage, if the petitioner is granted indulgence, it does not, in any manner, amount to interference to such an extent that it would meddle in the schedule of election.

41. In these premises, this Court is satisfied that the bar of interference would not come in the way where the rejection of nomination paper is apparently due to interpretation which is not keeping with the spirit of law.

42. The interpretation of Sub-rule (2) of Rule 45 can be construed to permit multiple nominations and this would not result in opposing intention of Legislature when proposal for nomination in different categories is permitted, and this course advance the democratic process.

43. This Court is, therefore, satisfied that the petitioner has made out a fit case for issue of final orders as prayed in terms of Prayer Clause [A].

44. Rule is, therefore, made absolute in terms of Prayer Clause [A]. Parties shall bear own costs

45. At this stage, learned Senior Advocate Mr. M.G. Bhangde prays for stay of order passed today as well as interim order.

46. As noted earlier, the voting is due on 9th March, 2008. If the order is stayed today, the result would certainly be irreversible, namely the respondent No. 4 would get elected and stage of voting will be rendered redundant. On the other hand, no prejudice would be caused to the respondent No. 4 if on any date, before he challenges this order, the situation would be reversed if this order is set aside/modified etc. In view of this situation, final order granting interim relief will be stayed till Thursday, the 28th February, 2008. However, interim order shall continue to remain in force.

47. Authenticated steno copy of this judgment be supplied to learned Advocate for the respondent No. 4 as per rules.