Bombay High Court
Monika Rajenra Mhaske vs The State Election Commission And ... on 14 January, 2021
Bench: S.V. Gangapurwala, Shrikant Dattatray Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
1017 WRIT PETITION NO. 101 OF 2021
MONIKA RAJENDRA MHASKE
VERSUS
THE STATE ELECTION COMMISSION AND OTHERS
...
Advocate for Petitioner: Mr. Salunke V. D.
Standing Counsel for Respondents No. 1 & 2:
Mr. A. B. Kadethankar
Advocate for Respondents No.3 & 4: Mr. V. D.
Sapkal, Senior Advocate h/f. Mr. S. E. Shekade
...
1018 WRIT PETITION NO. 102 OF 2021
REKHA DEEPAK JATAL
VERSUS
THE STATE ELECTION COMMISSION AND OTHERS
...
Advocate for Petitioner: Mr. Salunke V. D.
Standing Counsel for Respondents No. 1 & 2:
Mr. A. B. Kadethankar
Advocate for Respondents No.3 & 4: Mr. V. D.
Sapkal, Senior Advocate h/f. Mr. S. E. Shekade
...
CORAM: S. V. GANGAPURWALA &
SHRIKANT D. KULKARNI, JJ.
DATE: 14th JANUARY, 2021
PER COURT:
1. To avoid rigmarole both these writ petitions
are decided together and the facts are taken from
Writ Petition No. 101 of 2021.
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2. The petitioner had filled in the nomination
form for the election of the post of Member of
Grampanchayat from Ward No. 3B and Ward No. 3C.
The nomination paper of the petitioner for both
viz. Ward No. 3B and Ward No. 3C were accepted.
The name of the petitioner appeared in the list of
validly nominated candidates. On the date meant
for withdrawal of the nomination paper the
petitioner filed an application seeking withdrawal
of nomination from Ward No. 3C. It is the
contention of the petitioner that without issuing
notice to the petitioner and without affording any
opportunity to the petitioner the Returning
Officer arbitrarily passed an order directing that
the candidature of the petitioner stands withdrawn
from Ward No. 3B and Ward No. 3C. The said order
of the Returning Officer is assailed in the
present writ petition.
3. The Division Bench at the Principal Seat at
Bombay had referred following issues to the Full
Bench-
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"(i) 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?
(ii) Whether rejection of nomination form
would attract the provisions of Article 243-
O(b) of the Constitution of India?
(iii) Are the views expressed by the
Division Benches of this Court in the cases
of (i) Sudhakar s/o. Vitthal Misal vs. State
of Maharashtra and Ors., reported in 2007 (6)
All MR 773, and (ii) Smt. Mayaraju Ghavghave
vs. Returning Officer for Gram Panchayat,
Dhamangaon and Anr., reported in 2004(4) ALL
MR 258, correct, or does the decision in the
case of Vinod Pandurang Bharasakade vs.
Returning Officer, Akot and Anr., reported in
2003(4) Mh.L.J. 359, represents the correct
view in law?"
4. The Full Bench of this Court under its
judgment and order dated January 13, 2021 passed
in Writ Petition (St.) No. 26 of 2021 with
connected writ petition, answered the said
Reference and held as under-
"(i) 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 in the sense
enunciated in Mohinder Singh Gill (supra) and
explained in Ashok Kumar (supra) though it
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may not always amount to intervention,
obstruction or protraction of the election;
(ii) Article 243-O(b) of the Constitution
of India is a bar for entertaining a writ
petition under Article 226 of the
Constitution against an order passed by the
Returning Officer rejecting nomination paper
and such provision would clearly be attracted
whenever a writ petition is presented before
a Court for its consideration; and
(iii) The law laid down in Vinod Pandurang
Bharasakade (supra) represents the correct
view of law; consequently, we hold that the
decision in Smt. Mayaraju Ghavghaave (supra)
and Sudhakar s/o Vitthal Misal (supra) do not
lay down the correct law;"
5. Confronted with the judgment of the Full
Bench, Mr. Salunke, learned Counsel for the
petitioners submits that the judgment of the Full
Bench referred to above would be limited to the
extent the issues were referred to the Full Bench
and no further. The Reference was limited to the
extent of maintainability of a writ petition vis-
a-vis rejection of nomination paper. In the
present case, the nomination of the petitioner was
validly accepted. Subsequently, by an illegal
order and without adhering to the procedure, the
Returning Officer in high handed manner withdrew
the candidature of the petitioner
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even from the ward the petitioner had not sought
withdrawal of the candidature. The same is
illegal. A writ petition challenging such an
illegal order would be maintainable and the
judgment of the Full Bench of this Court referred
to above would not be an impediment to entertain
the present writ petitions. The Full Bench has not
considered the eventuality and the circumstances
as arising in the present case. The writ petitions
against the order of the Returning Officer
rejecting the nomination papers are entertained by
the learned Single Judge; normally under Article
227 of the Constitution of India, probably,
because of that the Full Bench was of the view
that the writ petition would not be maintainable.
The learned Counsel further submits that the
Reference before the Full Bench was not against
the acceptance of nomination form nor in respect
of the orders passed by the Returning Officer for
withdrawal of the candidature or otherwise. In
such an eventuality, the writ would be
maintainable and can be entertained by this Court.
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6. Mr. Kadethankar, learned Counsel for the
State Election Commission and Mr. Sapkal, learned
Senior Advocate for contesting respondents submits
that in view of the judgment of the Full Bench of
this court referred to supra, the petitioner can
naturally avail the remedy of election petition
and the writ petition would not be maintainable.
They referred to paragraphs no. 46, 54 and 64 of
the said judgment.
7. We have considered the submissions canvassed
by the learned Counsel for respective parties.
8. The Reference to the Full Bench, no doubt,
was made when the Division Bench at the Principal
Seat was hearing petitions against the orders
passed by the Returning Officer rejecting the
nomination papers. The Reference was required to
be made as the Division Bench hearing the matters
was confronted with contrary views of the co-
ordinate benches. The Full Bench discussed the
issue, law governing the challenge to the
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elections, so also, took stock of the various
precedents and observed as under-
"46. The essence of the above discussion
is 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.
54. In all the aforesaid decisions,
provisions of Part XV of the Constitution
together with the provisions of the
Representation of the People Act, 1951 were
under consideration. The law laid down
therein admits of no doubt that a petition
under Article 226 of the Constitution would
not be maintainable if it calls in question a
step in election and such questioning before
the Court may have the effect of
interrupting, obstructing or protracting the
election.
55. Article 243-O is pari-materia with
Article 329. While Article 329(b) as of
necessity would have to be read with the
Representation of the People Act, 1951,
Article 243-O has to be read with sections 15
and 15-A of the MVP Act. We have noted above
what sections 15 and 15-A provide. Applying
the reasoning of the Supreme Court in
relation to cases covered by Part XV of the
Constitution, there could be no valid and
justifiable reason for not applying the same
reasoning to cases covered by Part IX of the
Constitution relating to "The Panchayats" in
which Article 243-O and the other Articles
limiting the life of every Panchayat and
ordaining periodic elections to the
Panchayats find place. Thus, it would seem to
be an open and shut case for recording that
the writ petitions are not maintainable.
However, the controversy has arisen in view
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of the Division Bench decisions in Smt.
Mayaraju Ghavghave (supra) and Sudhakar s/o
Vitthal Misal (supra) wherein views have been
expressed, in contradiction to the view of an
earlier Division Bench in Vinod Pandurang
Bharsakade (supra). We may note here that in
Vinod Pandurang Bharsadade (supra), Hon'ble
C.K. Thakker, CJ. speaking for the Division
Bench had the occasion to look into all the
relevant authorities and treatises on the
point and returned a finding that the writ
petition before the Division Bench
challenging a step in the election was not
maintainable.
64. Having noticed the decision in Bharati
Reddy (supra), we consider it appropriate to
examine whether section 15 of the MVP Act
provides a 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; further, whether illegal/improper
rejection of nomination paper of an
individual seeking to contest an election
could form a valid ground for invalidating
the election of the successful candidate.
Sub-sections(1) and (2) of section 15 of the
MVP Act, in our view, provides complete
answers to the aforesaid questions. Under
sub-section (1), validity of any election of
a member could be brought in question by any
candidate at such election or by any person
qualified to vote for any election in the
manner and before the authority (Judge) as
ordained. Sub-section (2) provides the
procedure to be followed by the Judge upon
receiving an election petition and the extent
of relief that could be granted by him. The
Judge is vested with the power to conduct
inquiry and to pass necessary order
confirming or amending the declared result,
or setting the election aside. The submission
of Mr. Deshmukh, relying on sub-section(5),
that the Judge has the power to interfere
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only if a corrupt practice has been committed
by the successful candidate within the
meaning of sub-section (6) does not appear to
us to be sound. Though sub-section (5) refers
to a particular contingency which could
invalidate an election,sub-sections (1) and
(2) are not controlled by sub-section (5).
Sub-section (1) and (2), read together, are
of wide import and would take within its fold
a grievance raised against illegal/improper
rejection of nomination paper. We, thus,
conclude that the MVP Act, a complete code
in itself in relation to Panchayat 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 decision in Bharati
Reddy (supra) is, therefore, distinguishable
on facts."
9. After discussing the law, the Full Bench
answered the Reference as under-
"(i) 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 in the sense
enunciated in Mohinder Singh Gill (supra) and
explained in Ashok Kumar (supra) though it
may not always amount to intervention,
obstruction or protraction of the election;
(ii) Article 243-O(b) of the Constitution
of India is a bar for entertaining a writ
petition under Article 226 of the
Constitution against an order passed by the
Returning Officer rejecting nomination paper
and such provision would clearly be attracted
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whenever a writ petition is presented before
a Court for its consideration; and
(iii) The law laid down in Vinod Pandurang
Bharasakade (supra) represents the correct
view of law; consequently, we hold that the
decision in Smt. Mayaraju Ghavghaave (supra)
and Sudhakar s/o Vitthal Misal (supra) do not
lay down the correct law;"
10. The Full Bench observed that Article 243-O(b)
of the Constitution of India is a bar in
entertaining the writ petition under Article 226
of the Constitution of India against the order
passed by the Returning Officer rejecting
nomination paper and such provision would clearly
be attracted whenever writ petition is presented
before a Court for its consideration.
11. Article 243-O(b) reads thus-
"no election to any Panchayat shall be called
in question except by an election petition
presented to such authority and in such
manner as is provided for by or under any law
made by the Legislature of a State."
12. Mr. Salunke, the learned Counsel further
contends that Article 243-O of the Constitution of
India contemplates challenge to the election after
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the election is over and it does not contemplate
stage prior to the election.
13. The said argument would not hold good on the
touch stone of the judgment of the Full Bench
referred to above.
14. Article 243-O(b) mandates that no election to
any Panchayat shall be called in question except
by an election petition presented to such an
authority and in such manner as is provided for by
or under any law made by Legislature of the State.
The Full Bench referred to Article 243-O read with
Section 15 of the Maharashtra Village Panchayat
Act and formed an opinion that the bar to
entertain a writ petition as enshrined under
Article 243- O (b) would be attracted.
15. In the present case, the candidature of the
petitioner is withdrawn under the orders of the
Returning Officer. The candidature of the
petitioner stands withdrawn from Ward No. 3B and
3C, though, according to the petitioner the
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application for withdrawal of the candidature was
only from Ward No. 3C, however, the fact remains
that the candidature of the petitioner stands
withdrawn for both Wards 3B and 3C inter alia
rejected.
16. The analogy cannot be any different than what
has been observed by the Full Bench while holding
that Article 243-O(b) of the Constitution of India
would be bar for entertaining a writ petition
under Article 226 of the Constitution of India
against the order passed by the Returning Officer
rejecting the nomination paper. In the present
case also, under the order of the Returning
Officer the candidature of the petitioner stands
withdrawn inter alia barred from contesting
elections in the midst of the election process.
17. In view of the judgment of the Full Bench
referred to supra, it will not be possible to
accede to the arguments of Mr. Salunke, learned
Counsel for the petitioners.
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18. Writ Petitions, as such, are disposed of.
19. The petitioners would be at liberty to assail
their grievance in the appropriate proceedings, in
accordance with law. In that event, all
contentions of parties are kept open. No costs.
[SHRIKANT D. KULKARNI, J.] [S. V. GANGAPURWALA, J.]
marathe
