Bombay High Court
Parag S/O Madhukar Kamble vs The Election Commission Of India ... on 29 November, 2021
Bench: S.B. Shukre, Anil Laxman Pansare
1
wp4827.2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.4827/2021
Parag S/o Madhukar Kamble
..Vs..
The Election Commission of India, New Delhi and others
------------------------------------------------------------------------------------------------
Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
Mr. Arun Agrawal, Advocate for the petitioner.
Mr. Neerja Choubey, Advocate for respondent No.1.
Ms K.S. Joshi, In-charge Government Pleader for respondent No.2.
Mr. Sunil V. Manohar, Senior Advocate with Mr. Ved R. Deshpande,
Advocate for respondent No.3.
CORAM :- SUNIL B. SHUKRE AND
ANIL L. PANSARE, JJ.
DATED :- 29.11.2021.
Heard.
2. This petition questions acceptance of nomination
form by the Returning Officer of respondent No.3 for
election to Akola, Buldhana and Washim, Maharashtra
Legislative Council Constituencies, which acceptance
according to the petitioner is illegal.
3. Shri Arun Agrawal, learned counsel for the
petitioner, submits that since the acceptance of the
nomination form was based upon suppression of material
facts, it amounted to pushing into the election fray a
candidate who was not qualified to contest the election
and, therefore, ultimately it affected the choice of the
voters to elect a candidate and as such, the objection of
the petitioner requires consideration by invoking
wp4827.2021.odt
extraordinary jurisdiction of this Court under Article 226
of the Constitution of India.
4. Reliance has been placed upon the view taken by
the Full Bench of this Court in the case of Karmaveer
Tulshiram Autade and others V/s. The State Election
Commission, Mumbai and others decided on 13 th January,
2021 in Writ Petition (Stamp) No.26/2021 together with
other connected matters.
5. Shri Sunil Manohar, learned Senior Advocate who
appears for respondent No.3 opposes the petition. He
submits that this petition is not at all maintainable on the
ground that the petitioner has no locus standi in view of
the restricted entry at the time of scrutiny of nominations
under Section 36 of the Representation of People Act,
1951 (for short "Act of 1951") read with clause 6.3.1 of
the Election Manual. He also submits that the case of
Karmaveer Tulshiram Autade (supra) relied upon by the
learned counsel for the petitioner does not support the
case of the petitioner.
6. Learned Government Pleader and learned counsel
for respondent No.1 support the argument of learned
Senior Advocate.
7. Insofar as the locus standi of the petitioner is
concerned, according to learned counsel for the
petitioner, the petitioner being a voter has every right to
bring to the notice of the Returning Officer the illegalities
wp4827.2021.odt
committed by the candidates submitting nomination
forms and, therefore, even though the petitioner was
initially not permitted entry into the scrutiny room, later
on, the petitioner was allowed to enter and raise the
objection.
8. The argument of learned counsel for the petitioner
coming in support of conduct of the petitioner, in our
view, is against the express provisions of law. Section
36 of the Act of 1951 and clause 6.3.1 of the Election
Manual are relevant in this regard.
9. Sub-section (1) of Section 36 of the Act of 1951
reads as under:-
36. "36. Scrutiny of nomination.-
(1) On the date fixed for the scrutiny of
nominations under section 30, the
candidates, their election agents, one
proposer 9[***] of each candidate, and one
other person duly authorised in writing by
each candidate, but no other person, may
attend at such time and place as the
returning officer may appoint; and the
returning officer shall give them all
reasonable facilities for examining the
nomination papers of all candidates which
have been delivered within the time and in
the manner laid down in section 33."
[The words "and one seconder" omitted Act 27 of 1956, S.19]
Similarly, clause 6.3.1. of the Election Manual also
being relevant is reproduced as under:-
"6.3 Persons to be admitted
6.3.1 Returning Officer should take up the
scrutiny of the nomination papers at the
places fixed, on the day and at the hour
wp4827.2021.odt
fixed for the purpose which would have
already been intimated to the candidates.
Only such persons as are entitled to be
present under Section 36 of RP Act, 1951,
viz., the candidates, their election agents,
one proposer of each candidate and one
other person duly authorized in writing by
each candidate (such person can be
advocate also, if the candidate so desires),
and no other person shall be admitted at the
scrutiny. In the case of candidates set up by
registered un-recognized political parties
and independent candidates also, only one
of the proposers may be admitted at the
scrutiny."
10. A bare perusal of the above referred provisions of
law should be enough for us to be convinced that no
person other than those mentioned in Section 36(1) and
clause 6.3.1 are permitted to be present inside the
scrutiny room and witness the scrutiny of the
nominations. The permitted persons are the candidates,
their election agents, one proposer of each candidate and
one other person duly authorized in writing by each
candidate. There is an embargo specifically placed upon
the attendance of any person other than these persons as
prescribed in Section 36(1) as well as clause 6.3.1. The
purpose of these provisions of law is to facilitate the
process of scrutiny of nomination forms fairly and
speedily, to avoid chaos and disorder and to enable the
authorized persons to see that no favours are granted and
no illegalities are committed by the Returning Officer
while scrutinizing the nomination forms. If any person
other than those mentioned in Section 36(1) of the Act of
1951 and clause 6.3.1 of Election Manual are permitted,
wp4827.2021.odt
the legislature knew, there would be a possibility of chaos
and confusion ruling the roost making it well nigh
impossible for the Returning Officer to complete the
process objectively and with reasonable dispatch.
11. Such restriction upon entry inside the scrutiny
room only means that it were only the authorized
persons who would be entitled to raise the objections at
the time of scrutiny by the Returning Officer and no one
else. In the present case, the petitioner admittedly not
falling in any of the aforestated categories of persons who
were authorized to witness the process of scrutiny of
nominations, on the sheer strength of his heckling with
the authorities managed to get entry inside the scrutiny
room and raise objection. In other words, the petitioner
forced his entry in the scrutiny room though he was not
permitted to attend the scrutiny in view of the provisions
of Section 36(1) of the Act of 1951 and clause 6.3.1 the
Election Manual, and thus was a trespasser there. The
starting point of the petitioner in the whole process of
taking an exception to acceptance of nomination form of
respondent No.3 was thus founded upon violation of law.
The petitioner had been conferred with no right to raise
any objection by entering scrutiny room, and yet he,
"after lot of persuasion and heckling" (para 9 of the
petition), barged his way inside the scrutiny room. If the
law has given no right to a person like the petitioner, not
covered by Section 36(1) of the Act of 1951 and clause
6.3.1 of Election Manual, to attend the scrutiny of
wp4827.2021.odt
nomination forms, there would be no question of letting
such person inside the scrutiny room and then allowing
him to raise an objection at that time and place. If such
unauthorized persons or the trespassers are allowed in,
sanctity and purity of election process may possibly be
endangered. In this view of the matter, we are of the
opinion that the petitioner, as rightly submitted by
learned Senior Advocate, has no locus standi to raise
objection to acceptance of nomination form at this stage
and file this petition for vindication of the same. On this
ground alone, the petition is liable to be dismissed
summarily.
12. As regards the reliance placed upon the judgment
of the Full Bench in the case of Karmaveer Tulshiram
Autade and others (supra) by the learned Senior
Advocate, we find ourselves in agreement with him and
see no merit in the submission of learned counsel for the
petitioner. The careful perusal of the entire judgment
rendered by the Full Bench, particularly the observations
made in paragraphs 53 and 54 and the conclusions
reached in paragraph 68, leave no manner of doubt that
the extraordinary jurisdiction of the High Court under
Article 226 of the Constitution of India is not available to
any petitioner to question the legality or otherwise of the
order of rejection of the nomination form and even the
order of acceptance of the nomination form on
whatsoever ground as these orders would not, in the
opinion of the Full Bench, amount to constituting any
wp4827.2021.odt
step to sub-serve the progress of election and / or to
facilitate it's completion in the sense enunciated in the
case of Mohinder Singh Gill & Anr. V/s. The Chief
Election Commissioner, New Delhi & Ors., reported in
(1978) 1 SCC 405 and explained in Election Commission
of India through Secretary V/s. Ashok Kumar & Ors,
reported in (2000) 8 SCC 216.
13. We are, therefore, of the view that the said Full
Bench case of this Court does not support the contention
raised by the petitioner that Article 226 of the
Constitution of India jurisdiction is available to the
petitioner to question the legality and correctness of
order of acceptance of the nomination form of
respondent No.3, which the petitioner states to be illegal.
14. Of course, learned counsel for the petitioner
argues that the Full Bench decision needs to be looked at
from converse angle. He submits that if objection to
acceptance of nomination form is examined by invoking
writ jurisdiction under Article 226 and is upheld, it would
result in a step taken to sub-serve the progress of election
as voters would be in a better position to exercise their
franchise by choosing the right candidate. The argument
is fallacious and deserves it's outright rejection. In the
full Bench decision of Karmaveer Tulshiram Autade
(supra), it has been held by following N.P. Ponnuswami
V/s. The Returning Officer, Namakhal Constituency,
wp4827.2021.odt
Namakkal, Salem Dist. & Ors., AIR 1952 SC 64, Mohinder
Singh Gill (supra) and Ashok Kumar (supra) that a
petition under Article 226 laying a challenge to an
electoral process or any step connected therewith before
the result of the elections, covered by Part XV of the
Constitution, is declared, is not maintainable in view of
the provisions made in Article 329(b) of the Constitution.
It may be mentioned here that under Article 329(b) no
election to either House of Parliament or to the House of
either House of the Legislature of a State can be called in
question except by an election petition presented to
appropriate authority. Acceptance of nomination form,
rightly or wrongly, is a step connected with the election
and is a part of election process. "Election" in this
context means the entire process culminating in a
candidate being declared elected and is not confined to
the final result (See Election Commission, India V/s. Saka
Venkata Subba Rao, AIR 1953 SC 210 and Mohinder
Singh Gill (supra). It would then follow that the issue of
bar of jurisdiction of the High Court under Article 226 to
question the election would be determined not by the
result of the petition and it's impact on the voter's
franchise to elect a better candidate but by the meaning
of the term "election" employed in Article 329(b) of the
Constitution which is held to signify the entire process
culminating in a candidate being declared elected. So,
in our considered view, the argument of converse angle
theory agitates against the concept of 'election' as
embedded in Article 329(b) and is, therefore, rejected.
wp4827.2021.odt
15. In view of the above, petition stands summarily
dismissed. No costs.
JUDGE JUDGE
Tambaskar.
