Calcutta High Court (Appellete Side)

West Bengal Pharmacy Council And ... vs Rusha Podder And Others on 19 May, 2023

                                                      MAT NO. 411 OF 2023
                                                         REPORTABLE

        IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
                  CIVIL APPELLATE JURISDICTION
                          APPELLATE SIDE



                      RESERVED ON: 04.05.2023
                      DELIVERED ON:19.05.2023


                                 CORAM:

        THE HON'BLE MR. CHIEF JUSTICE T.S. SIVAGNANAM
                            AND
      THE HON'BLE MR. JUSTICE HIRANMAY BHATTACHARYYA


                       MAT NO. 411 OF 2023
                     (I.A. NO. CAN 01 OF 2023)
                     (I.A. NO. CAN 02 OF 2023)


         WEST BENGAL PHARMACY COUNCIL AND ANOTHER

                                 VERSUS

                   RUSHA PODDER AND OTHERS


Appearance:-
Mr. Kishore Datta, Advocate.
Mr. Avik Ghatak, Advocate.
Mr. Soham Banerjee, Advocate.
Mr. Parashar Baidya, Advocate.
Mr. Soham De Dhara, Advocate.
                                                 ....For the Appellants


Mr. Tapan Kumar Mukherjee, Advocate
Ms. Debdooti Dutta, Advocate
                                                      ...For the State

Mr. Aniruddha Chatterjee, Advocate.
Mr. Rahul Karmakar, Advocate.
Ms. Gargi Goswami, Advocate.
                                             .....For the Respondent


                              Page 1 of 45
                                                                   MAT NO. 411 OF 2023
                                                                     REPORTABLE

     Mr. Ananta Shaw, Advocate.
     Mr. Falguni Bandyopadhyay, Advocate.
     Ms. Sreetama Neogi, Advocate.
     Ms. Riya Ballav, Advocate.
                                                         ....For the Appellants in
                                                                   CAN 2 of 2023


                                      JUDGMENT

(Judgment by T.S. SIVAGNANAM, CJ.)

1. This intra court appeal has been filed by the West Bengal Pharmacy

Council challenging the correctness of the order passed in WPA No. 509 of

2023 dated 28.02.2023 filed by the respondents 1 to 4 herein. The

respondent writ petitioners had filed the writ petition praying for issuance of

writ of mandamus to direct the appellants/authorities to forthwith grant a

hearing of the objections raised by them vide email dated 01.01.2023; to

issue a writ of prohibition to restrain the appellant from sending election

papers to the electors on January 09, and January 10, 2023 and for

issuance of a writ of certiorari to quash the notice dated December 20, 2022

by which the appellant council published the list of accepted/rejected

candidates for the election to the West Bengal Pharmacy Council.

2. The Learned Single Bench by the impugned order held that the

rejection of the nomination of the respondent writ petitioners was flawed

and directed the appellant council to reconsider the nominations filed by the

writ petitioners in accordance with Rule 5(1) of the Rules for Election of

Members including the President and the Vice President of the West Bengal

Pharmacy Council and of the Members of the Executive Committee of the

said council. The learned writ court further directed that the appellant

council will give effect to the final list/notice published on 20.12.2022 only

MAT NO. 411 OF 2023 REPORTABLE

after the direction is complied with. Further it was observed that since the

last election of the council was held in 2007 with the tenure of office expired

in 2013, no prejudice is caused if the question of the writ petitioner's

candidatures is decided within the time directed. The appellant council

being aggrieved by such order have preferred this appeal.

3. Heard Mr. Kishore Dutta, learned senior advocate assisted by Mr. Avik

Ghatak, Mr. Soham Banerjee, Mr. Parashar Baidya and Mr. Soham De

Dhara, learned advocates for the appellants. Mr. Tapan Kumar Mukherjee

assisted by Ms. Debdooti Dutta, learned advocates for the state. Mr.

Aniruddha Chatterjee assisted by Mr. Rahul Karmakar and Ms. Gargi

Goswami learned advocates for the respondent. Mr. Ananta Shaw assisted

by Mr. Falguni Bandyopadhyay, Ms. Sreetama Neogi and Ms. Riya Ballav

learned advocates for the appellants in CAN No. 02 of 2023.

4. The facts leading to the filing of the writ petition are as hereunder. The

writ petitioners are registered pharmacists under the appellant council

having valid registration as on the date when they filed the writ petition. It

was stated that 15 members constitute the body of the council and out of

the said 15 members, 6 members are elected among the registered

pharmacists of the State of West Bengal, 5 members to be nominated by the

State of West Bengal of whom 3 must possess prescribed degree or diploma

in pharmacy and one member has to be elected from the West Bengal

Medical Council and the other three members are ex-officio Chief

Administrative Medical Officer, Ex-officio Officer-in-charge, Drugs Control

and Ex Officio Government analyst under the Drugs and Cosmetics Act,

1940, the entire panel of members as specified under Section 19 of the

MAT NO. 411 OF 2023 REPORTABLE

Pharmacy Act, 1948. The writ petitioners sought to bring out the lacunae in

the election process to be held for the members under Section 19(1)(a) of the

Pharmacy Act. It was stated that in terms of the Rules of Election which

were published in the Calcutta Gazette on 21.07.1966, the Registrar, the

second appellant, is empowered to Act as a returning officer for conducting

and holding the elections. Rule 2 of the said rules provides for preparation of

draft electoral roll followed by the final electoral roll after effecting correction

in the said draft, if any. Rule 3 relates to the nomination of candidates

whose names appear in the said final roll. Rule 5 provides for a Dispute

Redressal Mechanism in case of any grievance of the candidates of their

nomination. The remaining provision deals with the conduct of the electoral

process.

5. The appellant council vide gazette publication dated 14.09.2022

published an election notice indicating the relevant dates for filing of

nomination papers and their scrutiny. It is stated that after 2013, there was

no election conducted however the members who were elected in the year

2007 continued in office in gross violation of the provisions of the Pharmacy

Act. By notice dated 28.09.2022, it was indicated that pharmacist whose

names are renewed on or before August 25, 2022, their names shall appear

in the draft electoral roll. Any missing names was sought to be included in

the draft but the persons whose registration have not been renewed shall

not be considered. It was stated that the registration of all the writ

petitioners were duly renewed on or before 25.08.2022 as per Section 34 of

the Pharmacy Act. The nomination for the election is to be filed in Form C as

provided in Rule 3 wherein the candidate was required to furnish any

MAT NO. 411 OF 2023 REPORTABLE

additional details, if the name of the candidate appeared in the electoral roll.

It was stated that there is no provision made in the said form or the rule to

provide for any professional address nor furnishing documentary proof. It

was stated that the reason for such a provision being the members whose

names appeared in the register have already provided all requisite

information required to publish the final electoral roll and the only

requirement for a candidate is to renew the registration within the time

specified. By notice dated 12.10.2022, the appellant extended the time for

inclusion of names and correction of postal address from 12.10.2022 to

18.10.2022. Date of filing nomination was from 12.12.2022 to 16.12.2022

and scrutiny was to be done on 19.12.2022. The despatch of voting papers

to the electors was stipulated to be done between 09.01.2023 to 10.01.2023.

It was further submitted that in the final electoral roll which was published

on 14.11.2022, the names of the writ petitioners were appearing in the said

list in serial nos. 11077, 85874, 2545 and 16446 respectively. The writ

petitioners filed their nomination with the second appellant/returning officer

in Form C on 15.12.2022 along with all the requisite documents and the

nomination was accepted by the second appellant. On 20.12.2022, the

appellant rejected the nomination of the writ petitioners on the ground of

the non-compliance of professional address and date of birth, non-

compliance of residential and professional address, submission of incorrect

Form C, non-submission of ID proof respectively. It is the case of the writ

petitioners that all documents were available before the appellants and there

was no requirement to file fresh documents and the renewal of the

registration of the writ petitioners presupposes the fact that all documents

MAT NO. 411 OF 2023 REPORTABLE

and particulars were duly verified and made up to date. By election notice

dated 23.12.2022, the appellants published the names of only ten

candidates who were found to be duly nominated after scrutiny and all other

nominations were rejected. The petitioners on coming to know about the

rejection of their nomination had sent an email on the very same date

namely 19.12.2022 requesting for the reasons for rejection as the same was

not disclosed to the writ petitioners. This was followed by another email

dated 01.01.2023 and since there was no response from the appellants, the

writ petitioners lodged a formal objection with the authorities in terms of

Rule 5 of the election rules. Since no action was initiated on the said

objections, the writ petition was filed.

6. The main ground on which the action of the appellant was questioned

is by contending that the appellants ought to have complied with the

mandate contained in Rule 5(1) of the Election Rules thereby providing a

hearing of the objections raised by the writ petitioners by their emails dated

01.01.2023 and having violated the said provision, the notification

published by the appellant dated 20.12.2022 is liable to be set aside. A

supplementary affidavit was filed by the petitioners contending that the

second appellant refused to take written objection filed by them on record

which necessitated them to approach this court to file the writ petition. The

petitioners contended that their emails dated 19.12.2022 sent even before

the communication of reasons for rejection to the writ petitioners read with

the email of 01.01.2023 satisfies the requirements under Rule 5(1) of the

election rules which states that if there be any objection by any candidate to

the decision of the returning officer, it must be made forthwith and this

MAT NO. 411 OF 2023 REPORTABLE

condition has been complied with. The appellant resisted the prayer sought

for in the writ petition by contending that the writ petitioners 1, 2 and 4

were present at the time of scrutiny and were aware of the rejection of their

nomination, they did not raise any objection under Rule 5(1) of the Rules. It

was further contended that the election process should not be stopped as

the election has already commenced with the publication of the election

notice in September 20, 2022. Further it was submitted that the writ

petitioners have a mechanism for redressal under the Rules where the State

Government shall decide on any question as to the construction of the rules

including the validity of the election.

7. The learned single bench had taken note of the Rule 5(1) of the

Election Rules and found that the objection raised by the writ petitioners by

their email dated 19.12.2022 followed by their email dated 01.01.2023 is

due compliance of the requirement under Rule 5(1) of the Election Rules and

the appellant ought to have considered the objection in terms of the

provisions under the Rules and failure to do so would result in setting aside

the rejection of the nomination. Dealing with the objection raised by the

appellant that the High Court should not interfere in the election process by

placing reliance on the decision of the Hon'ble Supreme Court in Shaji K.

Joseph Versus V. Viswanath and Others 1, the learned writ court held

that the said decision proceeded on the facts that an alternative statutory

remedy was available to one of the parties in the said case and dealt with

the Dental Council (Election) Regulation, 1952 by comparing Rule 9 of the

Dental Council Regulation relating to the scrutiny of the nomination paper

(2016) 4 SCC 429

MAT NO. 411 OF 2023 REPORTABLE

with that of Rule 5(1) of the Election Rules of the West Bengal Pharmacy

Council, the court found that there is substantial difference between both

the rules and the present controversy must turn solely on the construction

of the Pharmacy Council Rules. The learned writ court placed reliance on

the decision of the Hon'ble Supreme Court in Maharashtra Chess

Association Versus Union of India 2 wherein the Hon'ble Supreme Court

reiterated that Article 226 (1) of the Constitution confers the power to issue

writs on all High Courts for enforcement of fundamental rights in Part III of

the Constitution or "for any other purpose" and held that the power under

Article 226 can be exercised by the High Court to reach injustice where it is

found. Ultimately the writ petition was allowed with the direction to consider

the nominations filed by the writ petitioners in accordance with the Act and

the rules including Rule 5(1) of the election rules.

8. In this appeal, the appellant have reiterated their contention which

was raised in the writ petition stating that the writ petitioners are guilty of

delay, latches and negligence in approaching the legal forum at the

appropriate time and voluntarily and knowingly fully allowed the period of

filing the objection regarding their rejection of nomination to lapse and as

such when the ballot papers have been printed, despatched to the voters

and voters exercising their franchise and returned the ballot to the returning

officer, the learned single bench was in error in nullifying the entire process

of election. It is further submitted that the learned single bench cannot take

post decisional consideration regarding the actual meaning of the word

"forthwith" in Rule 5(1) of the election rules, which in ordinary sense

(2020) 13 SCC 285

MAT NO. 411 OF 2023 REPORTABLE

signifies urgent and/or immediate and without unnecessary delay and as

such when a reasonable meaning has been implemented by notification

dated 12.12.2022. The observations made by the learned Writ Court are not

sustainable more particularly when the writ petitioners have not challenged

the notification dated 12.12.2022. Further by referring to the Rules 5, 6 and

7 of the Election Rules, it is submitted that the time for raising objection

could be stretched for three days at best and not beyond that period of time

and therefore the order passed by the learned writ court cannot be

sustained in the eye of law. Further the writ petitioners have efficacious

alternate remedy under Rule 23 and Rule 25 of the Election Rules and the

writ petition was not maintainable.

9. The learned senior advocate appearing for the appellant placed

reliance on the decision of the Hon'ble Supreme Court in Shaji K. Joseph

which was also placed before the learned writ court.

10. In exercise of the powers conferred by Section 46(1),(2) (b) of the

Pharmacy Act, 1948 and in supersession of the notification dated

14.10.1952, the Rules for Election of Members of the West Bengal Pharmacy

Council were notified and published in the Calcutta Gazette dated

22.07.1966. Part 2 of the said rules deal with the election under Clause (a)

of Section 19 of the Pharmacy Act. The said part contains eight rules of

which Rule No. 5 is of significance and subject matter of interpretation in

the present litigation which is quoted hereunder:-

Rule 5:

1. On the date and at the time as fixed for the scrutiny of nominations by the notification under Rule 2, the Returning

MAT NO. 411 OF 2023 REPORTABLE

Officer shall scrutinize all the nomination papers strictly with reference to the final electoral roll and decide which of them are in order and which are not. Nomination papers which do not comply with the requirements of Rule 3 shall be rejected. If there be any objection by any candidate to the decision of the Returning Officer, it must be made forthwith and the objections shall be heard by the Returning Officer and two members of the Council, not being candidates for the election, appointed by the President, and their decision thereon shall be final.

2. Every nominee for whom nomination paper has been received and one representative duly authorised by him in writing, or his proposer or seconder, shall be entitled to be present at the time of the scrutiny of nominations.

11. In terms of the above Rule on the date and the time as fixed for the

scrutiny of nominations vide notification under Rule 2, the Returning Officer

shall scrutinize all the nomination papers strictly with reference to the final

electoral roll and decide which of them are in order and which are not.

Nomination papers which do not comply with the requirements of Rule 3

can be rejected. If there be any objection by any candidate to the decision of

the Returning Officer, it must be made forthwith, and the objection shall be

heard by the Returning Officer and two Members of the Council, not being

candidates for the election, appointed by the President and their decision

thereon shall be final. Rule 3 of the Election Rules is as follows:

3. (1) Any person whose name is included in the final electoral roll prepared under Sub-rule (4) of Rule 2 is entitled to be nominated as a candidate for election under clause (a) of Section 19.

(2) Nominations of candidates shall be made in Form C and there shall be a proposer and a seconder. Every

MAT NO. 411 OF 2023 REPORTABLE

nomination paper shall be filled in fully in all particulars as stated in the said Form.

(3) The proposer, or the seconder and their nominee shall be persons whose names are borne on the final electoral roll.

(4) A proposer, or a seconder may propose or second more than one candidates, provided that the number of candidates proposed does not exceed the number of seats for which the election is held and that a separate nomination paper is issued for each candidate proposed or seconded.

12. The above Rule provides for the requirements to be fulfilled by a

candidate who seeks to offer himself for elections. Sub-rule (1) states that

any person whose name is included in the final electoral roll prepared under

Sub-rule (4) of Rule 2 is entitled to be nominated as a candidate for election

under clause (a) of Section 19. Sub-rule (2) states every nomination paper

shall be filled in fully in all particulars as stated in the said Form. Every

nomination paper shall be filled in fully in all particulars as stated in the

said form. Sub-rule (3) states that the proposer, or the seconder and their

nominee shall be the persons whose names are borne on the final electoral

roll. Sub-rule (4) states that a proposer, or a seconder may propose or

second more than one candidates, provided that the number of candidates

proposed does not exceed the number of seats for which the election is held

and that a separate nomination paper is issued for each candidate proposed

or seconded. Form C is the form of nomination paper which is as follows:

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FORM C

Nomination Paper

[Vide rule 4]

1. Name of candidate (in full as registered)................................................... .................................................................................................................

2. Father's Name........................................................................................

3. Registration number.......................... in Part..........................................

4. Qualification as registered.......................................................................

5. Address (residential address)...................................................................

I............................................ a registered pharmacist in West Bengal with registration number...................in Part........................... proposed the abovenamed candidate for election as member of the West Bengal Pharmacy Council under clause (a) of section 19 of the Pharmacy Act, 1948 (Act 8 of 1948).

............................................... Dated the........................20 Signature (in full) of proposer

I........................................... a registered pharmacist in West Bengal with registration number................in Part................... Second the above proposal.

............................................... Dated the...................20 Signature (in full) of Seconder

*Name in full as registered

Declaration by the candidate nominated

I, the abovenamed, a citizen of India....................................... *hereby declare that I agree to this nomination; that I am a registered pharmacist in West Bengal with registration number.................. in Part ....................and that my address (residential address) is............................

*Name in full as registered.

Dated the.......................20 ...................Signature (in full) of the candidate.

MAT NO. 411 OF 2023 REPORTABLE

13. As could be seen from the above form, the particulars which were

required to be furnished by a candidate have been stipulated and a

declaration is sought for from the candidate. Thus, a nomination to be valid,

it should be in accordance with Form C. If a candidate had filled up Form C

with the particulars and information sought for coupled with a declaration,

it should be treated as a valid nomination. The question would be as to

whether the rejection of the nomination of the writ petitioners was in

accordance with the said Rule. Admittedly, on the date of the scrutiny, the

writ petitioners were not informed as to the reasons for rejection. Therefore,

they sent e-mail on 19th December, 2022 at about 4 P.M. wherein they have

requested that reasons of rejection of their nomination should be furnished

to them within 24 hours. This request was not complied with and the writ

petitioners sent another e-mail on 1st January, 2023 stating that the reason

for cancellation of their nominations is non-compliance in respect of

professional address and non-compliance of date of birth with the submitted

documents. It was pointed out that the list of documents required relating to

professional address and date of birth have not been mentioned anywhere in

Form C and all of them have already submitted the relevant documents at

the time of registration and renewal and based on those documents, renewal

of the registration has been done and, therefore, it was incorrect to reject

their nominations and requested that their nominations may be accepted.

Since the writ petitioners were not favoured with any reply, they had filed

the said writ petition.

MAT NO. 411 OF 2023 REPORTABLE

14. As could be seen from the notification issued by the first appellant

dated 20th December, 2022, the reason for rejection of the nomination of the

first respondent herein was due to non-compliance in respect of professional

address, non-compliance of date of birth recorded with the first register of

the Council. The reasons for rejection are clearly outside the scope of Form

C and when the writ petitioner had a valid registration and their name found

place in the electoral roll, the rejection for the reasons assigned appear to be

wholly beyond the scope of the Rules. Similar is the reason for rejection of

the second respondent. In respect of the third respondent, it has been stated

that the nomination has been rejected due to submission of incorrect Form

C. However, the reasons do not indicate what was the mistake in the Form C

declaration. Therefore, the reason for rejection though mentioned is non-

speaking. So far as the fourth respondent is concerned, the reason for

rejection is due to non-submission of any ID proof or verification, with the

record of the First Register. This reason is clearly beyond the scope of the

Form C. In any event all these documents, details and information were

already available on record with the first appellant since, the writ petitioners

had a valid registration on the date when they filed their nomination.

Therefore, I entertain a serious doubt as to whether the enmass rejection of

the nomination, not only that of the writ petitioners, but in total 25

nominations, is apparently for certain other reasons which are best known

to the people in the helm of affairs of the appellants. It is rather surprising

to note that out of 35 nominations which were filed, 25 nominations have

been rejected and only 10 nominations are stated to be valid. This trend is

very anomalous and rather surprising casting a cloud on the entire process

MAT NO. 411 OF 2023 REPORTABLE

of election adopted by the appellants. I am conscious of the fact that there

are several decisions of the Hon'ble Supreme Court which hold that once an

election process has commenced, the same shall not be interdicted. At the

same time when glaring irregularities and illegalities are pointed out, should

the Court shut its eyes to reality and refuse to grant any indulgence to the

aggrieved.

15. At this juncture, I shall consider as the issue regarding the

maintainability of the writ petition qua the relief sought for by the writ

petitioner. In Election Commission of India Versus Ashok Kumar &

Ors.3 The Hon'ble Supreme Court considered whether there is any conflict

between the jurisdiction conferred on the High Courts under Article 226 of

the Constitution and the embargo created by Article 329 and if so, how

would they co-exist. The Hon'ble Supreme Court noted the decision in N.P.

Ponnuswami Versus Returning Officer, Namakkal Constituency 4 and

the decision of the Hon'ble Supreme Court in Mohinder Singh Gill Versus

Chief Election Commr.5 and the Hon'ble Supreme Court summed up its

conclusion and by adding clarification to the earlier judgments held as

follows:

32) 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

AIR 2000 SC 2977

AIR 1952 SC 64

(1978) 1 SCC 405

MAT NO. 411 OF 2023 REPORTABLE

proceedings 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 proceedings 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 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 proceedings, 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 the 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

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hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and 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. (Emphasis Added)."

16. In Avtar Singh Hit Versus Delhi Sikh Gurdwara Management

Committee And Ors.6 the Hon'ble Supreme Court held that in the absence

of any exceptional and extraordinary circumstances, the writ petition under

Article 226 of the Constitution should not be entertained for resolving a

factual dispute and the petitioners therein should have filed only an election

petition. In K. Venkatachalam Vs. A. Swamickan 7 the Hon'ble Supreme

Court held that Article 329 (b) which bar interference of the Court in

electoral matters does not come into play when the case falls under Articles

194 and 193 which provide for disqualification for membership and penalty

for sitting and voting when disqualified, a High Court should exercise

jurisdiction under Article 226 of the Constitution and declare the election as

illegal inasmuch as the elector did not possess the basic constitutional and

statutory qualification.

17. In Jayrajbhai Jayantibhai Patel Versus Anilbhai Nathubhai

Patel and Ors.8 the Hon'ble Supreme Court discussed the scope of such

judicial review under Article 226 in the matter of the election of President of

Municipality. Having noticed that two Counsellors of the Municipality were

detained by police few minutes before the election meeting and in spite of

the fact being brought to the notice of the Returning Officer, the returning

JT (2006) 9 SCC 111

AIR 1999 SC 1723

2006 AIR SCW 4670

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Officer decided to continue with the election, the Hon'ble Supreme Court

held that in facts and circumstances, the decision of the Returning Officer

was perverse and irrational warranting interference under Article 226 of the

Constitution. In Rampakavi Rayappa Belagali Versus B.D. Jatti 9 the

Hon'ble Supreme Court held that free and fair elections are the very

foundation of the democratic institutions and just as it is said that justice

was not only be done but also seemed to be done; similarly the elections are

not only be fairly and properly held but should also seem to be so conducted

as to inspire confidence in the minds of the electors and everything has been

above bar and has been done to ensure free election. In Mohinder Singh

Gill the Hon'ble Supreme Court held that the Constitution contemplates a

free and fair election and vests comprehensive responsibility of

superintendence, direction and control of the conduct of elections in the

Election Commission. This responsibility may cover powers, duties and

functions of many sorts, administrative or other, depending on the

circumstances.

18. At this juncture, it would be relevant to once again take note of the

judgment of the Hon'ble Supreme Court in Jayrajbhai Jayantibhai Patel

(Supra) wherein the Hon'ble Supreme Court was dealing with the election

matter as hereunder:

"18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no

(1917) 3 SCC 147

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standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercised the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a Court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the Court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision- making process and not the decision."

[[

19. In Smt. Gunwant Kaur and Ors. Versus Municipal Committee,

Bhatinda 10 the Hon'ble Supreme Court considered the jurisdiction of the

High Courts under Article 226 of the Constitution and held as follows:

"14. ... The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a

(1969) 3 SCC 769

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writ petition, the High Court may decline to try a petition...

16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed questions of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit-in-reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit."

20. In T.K. Rangarajan vs Government Of Tamil Nadu & Ors.11 the

Hon'ble Supreme Court reiterated the jurisdiction of the High Court under

Article 226 of the Constitution in the following manner:

"5. At the outset, it is to be reiterated that under Article 226 of the Constitution, the High Court is empowered to exercise its extraordinary jurisdiction to meet unprecedented extraordinary situation having no parallel. It is equally true that extraordinary powers are required to be sparingly used. The facts of the present case reveal that this was most extraordinary case, which called for interference by the High Court, as the State Government had dismissed about two lakh employees for going on strike.

10. There cannot be any doubt that the aforesaid judgment of larger Bench is binding on this Court and we respectfully agree with the same. However, in a case like this, if thousands of employees are directed to approach the Administrative Tribunal, the Tribunal would not be in a position to render justice to the cause. Hence, as stated earlier, because of very very exceptional circumstance that arose in the present

(2003) 6 SCC 581

MAT NO. 411 OF 2023 REPORTABLE

case, there was no justifiable reason for the High Court not to entertain the petitions on the ground of alternative remedy provided under the Statute. (emphasis added)"

21. Thus, the legal principle which can be culled out from the afore-

mentioned decision is that there is no absolute bar for entertaining a writ

petition when exceptional and extraordinary circumstances exist which will

justify the Court exercising power under Article 226 to bypass alternate

remedies. If the monstrosity of the situation or other exceptional

circumstance cries for timely jurisdictional interdict or mandate, the Court

should not hesitate to exercise its extraordinary power under Article 226 of

the Constitution.

22. As pointed out earlier, the rejections of 25 nominations out of 35

nominations for reasons which appear to be clearly outside the scope of the

particulars called for in Form C is undoubtedly an exceptional circumstance

and, therefore, the writ petitioners were fully justified in approaching the

Writ Court. Interestingly when the election notice was published on 12th

December, 2022, the schedule of the election has been mentioned however,

the publication of the list of valid nominations has not been specifically

mentioned and no date and time has been notified. The election notice fixes

the time limit for withdrawal of nomination as any time before the scrutiny

of the nomination and 3 days thereafter i.e. dated 22.12.2022. However, the

date on which the list of valid nomination will be published has not been

mentioned in the notification. This appears to be a very serious lacuna. In

any event on the date of scrutiny of nomination i.e. on 19th December, 2022,

it is clear that some of the writ petitioners were present but it is not in

MAT NO. 411 OF 2023 REPORTABLE

dispute that the reason for rejection of the nomination was not disclosed to

the writ petitioners or to the other 21 candidates whose nominations have

been rejected. The grievance redressal mechanism under Rule 5(1) of the

Election Rules is not an empty formality. The word "immediate" occurring in

Sub-rule (1) of Rule 3 has to be given an interpretation based on the facts

and circumstances. If the candidate whose nomination has been rejected,

has not been put on notice as to the reasons for rejection cannot be called

upon to file their objection immediately because the person aggrieved has

not been intimated as to on what grounds his nomination is rejected. That

apart the Rule also states that the objections shall be heard by the

Returning Officer with two Members of the Council not being candidates for

election appointed by the President and their decision shall be final. Thus,

the Rule contemplates an opportunity of being heard, it goes without saying

that it shall be an opportunity of being heard in person and this hearing has

to be given by a three Member Body two of whom should be Members of the

Council who are not candidates for the election. Thus, it is evidently clear

that the people at the helm of affairs of the first appellant and the second

appellant have abused their powers vested with them. In fact, it is not clear

as to how the persons whose terms of office had expired in the year 2013

continued to claim himself as President and members of the Council and in

spite of the process being lingering so long, the State Government has not

taken any action to remedy the situation.

23. As already noted, if the nomination is in accordance with Form C,

there could be no ground to reject such a nomination and the reasons set

out for rejection of the nomination of the writ petitioners are clearly outside

MAT NO. 411 OF 2023 REPORTABLE

the scope of the requirements to be complied with in Form C. Thus, I am

fully convinced that the learned Single Bench was perfectly right in allowing

the writ petition and directing the objection raised by the writ petitioners to

be considered by the Committee which is to be constituted in terms of Rule

5(1) of the Rules. In the light of the direction issued by the learned Writ

Court it goes without saying that the entire election process thus far

conducted, is required to be scrapped and the matter should stand restored

to the stage where the scrutiny of nominations were conducted. Thus, the

election process needs to be pushed back to the said date and the objections

of the writ petitioners as well as the other 21 candidates whose nominations

were rejected has to be considered by the 3 Member committee.

24. I am of the further view that there should be an Observer nominated

by the Government to ensure that the entire election process is conducted in

a free and fair manner without any irregularity or complaints. Therefore,

while affirming the decision of the learned Single Bench, it is directed that

not only the correctness of the rejection of the nominations of the writ

petitioners should be considered but also such of those 21 nominations

which were rejected whoever files objection, is required to be considered by

the committee in terms of the Rules 5(1) of the Election Rules. In order to

ensure that the election process is conducted in a proper manner, we direct

the Secretary, Ministry of Health and Family Welfare Department,

Government of West Bengal to nominate a Senior Officer of the said

Department to act as Observer to ensure that the election process is

conducted in a free and fair manner. The Observer is required to made

known all the developments and all actions and decisions shall be taken in

MAT NO. 411 OF 2023 REPORTABLE

the presence of the Observer. The appellants are directed to publish a

notification giving the text of the directions issued above and making it

known to all the 25 candidates whose nominations were rejected would be

at liberty to file their objections within 3 days from the date of publication of

the said notification and the objections shall be dealt with in the manner as

directed by the learned writ court.

25. With the above direction, the appeal is dismissed.

(T.S. SIVAGNANAM, CJ.)

(P.A- PRAMITA/SACHIN)

(Judgment by HIRANMAY BHATTACHARYYA, J.)

I have had the privilege of reading the judgment proposed by the Hon'ble

Chief Justice. With deepest of respect to the Hon'ble Chief Judge, I am

unable to agree with the reasoning as well as the conclusion arrived at by

the Hon'ble Chief Justice. For such reason, I am recording my findings and

conclusions hereinafter.

26. The West Bengal Pharmacy Council (for short "the Council") and its

Registrar has filed this intra court appeal challenging the order dated

28.02.2023 passed by a learned Single Judge in WPA 509 of 2023.

27. By the impugned order, the Registrar was directed to reconsider the

nominations filed by the four writ petitioners within a specified time frame

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and the final list published on December 20, 2022 shall be given effect to by

the council thereafter.

28. The writ petitioners/respondent nos. 1 to 4 herein claim to be the

registered pharmacists under the Council. The Registrar of the Council

being the Returning Officer published an Election Notice dated 12.12.2022

notifying holding of General Election of Members of the Council under

Clause (a) of Section 19 of the Pharmacy Act, 1948 (for short "the 1948

Act"). Writ petitioners filed their nomination papers which were ultimately

rejected on scrutiny. Writ petitioners claim to have filed objections against

the order of rejection vide Electronic Mails dated January 1, 2023, on which,

no decision was communicated. Being aggrieved by the order of rejection of

nomination papers, the private respondents herein approached the writ

court praying for issuance of a writ of mandamus to command the

concerned authority to hear out their objections and for quashing of the

notice/list dated December 20, 2022.

29. The learned Single Judge, by the order impugned, directed

reconsideration of the nomination papers and the Council and its Registrar

being aggrieved by such decision have approached this Court.

30. Mr. Datta, learned Senior Council appearing in support of the appeal,

after referring to the relevant dates from the Election Notice as well as the

provisions of the 1948 Act and the rules framed thereunder, at the threshold

challenged the maintainability of the writ petition by submitting that it is

the settled proposition of law that courts should not interfere with the

process of election after its commencement. In support of such contention

MAT NO. 411 OF 2023 REPORTABLE

reliance was placed upon the decision of the Hon'ble Supreme Court of India

in the case of Shaji K. Joseph Versus V. Viswanath & ors. 12. Mr. Dutta

further contended that there was no inaction on the part of the concerned

authority by not considering the e-mails dated January 1, 2023 raising

objection against the order of rejection of nomination as the same was

submitted at a belated stage. He also contended that since there was no stay

upon the election process excepting the order of restraint from declaring the

result, nomination papers could not have been directed to be reconsidered

once polling and counting of votes are completed.

31. Mr. Chatterjee, learned advocate representing the writ petitioners

/respondents seriously disputed the submissions of Mr. Datta. By referring

to Rule 5 of the relevant rules governing the election of members to the

Council, Mr. Chatterjee contended that it was incumbent upon the

Returning Officer and two members of the Council to hear out the objections

filed by the writ petitioners and since there has been a failure on the part of

such authorities to perform the duties vested upon them, the writ court was

well within its powers to interfere in such cases. By drawing the attention of

the Court to the grounds for rejection of the nomination papers, Mr.

Chatterjee tried to impress upon this Court that the order of rejection was

improper.

32. Mr. Shaw, learned advocate appeared for the applicants in CAN 2 of

2023 and submitted that the nominations of the applicants have also been

(2016) 4 SCC 429

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rejected by the Returning Officer on frivolous grounds. He prays for adding

the applicants as parties to this appeal.

33. The application for addition of party is to be decided first before

entering into the merits of the appeal.

34. The order of rejection of nomination of the applicants in CAN 2 of 2023

was not the subject matter of the writ petition out of which the instant

appeal arises. That apart an order of rejection by the Returning Officer

cannot be assailed by an affected party for the first time in an intra court

appeal and that too being added in the capacity of the respondents in this

appeal. For such reason, I am not inclined to allow the prayer of the

applicants in CAN 2 of 2023 for being added as a party to this appeal.

However, such applicants are left free to seek appropriate remedy in

accordance with law. The application stands disposed of accordingly.

35. From the elaborate arguments advanced by the learned advocates for

the parties the following question arises for consideration in this appeal.

36. Whether the learned Single Judge was justified in allowing the objections

against the order of rejection of nomination papers in an application under

Article 226 of the Constitution of India?

37. Election notice was issued on 12.12.2022 notifying that a General

Election of Member of the Council under Section 19(a) of the 1948 Act will

be held. In the said notice it was stated that filing of Nomination shall start

on 12.12.2022 and will continue till 16.12.2022. The date for scrutiny was

fixed on 19.12.2022. It was stated that nominations can be withdrawn at

MAT NO. 411 OF 2023 REPORTABLE

any time before the scrutiny of the nominations and three days thereafter

i.e. till 22.12.2022. In case polling is required, voting papers shall be

dispatched to the electors from 09.01.2023 to 10.01.2023. The election

notice was published in the Kolkata Gazette on December 12, 2022.

38. From the dates indicated hereinbefore it is evident that the election

process commenced with the publication of the election notice on

12.12.2022. The writ petitioners, by a letter dated December 19, 2022,

wanted to know the reasons for rejection of their nomination. The reason for

rejection of nominations was published by the Council on December 20,

2022. The writ petitioners vide letters sent through e-mail on January 1,

2023 raised objection against rejection of their nomination. Alleging inaction

on the part of the concerned authorities, the private respondents herein

approached the writ court.

39. In order to decide the question that has cropped up in this instant

appeal, it would be relevant to take note of some of the provisions laid down

in the 1948 Act and the relevant rules for election framed thereunder.

40. For the purpose of electing the requisite members from amongst the

registered pharmacists of the State, election notice was issued under the

provisions of Section 19(a) of the 1948 Act. Chapter III of the said Act starts

with Section 19. Section 24 falls under Chapter III and states that elections

under that Chapter shall be conducted in the prescribed manner and where

any dispute arises regarding any such election, it shall be referred to the

State Government, whose decision shall be final. Section 46 of the said Act

empowers the State Government to frame rules and in exercise of such

MAT NO. 411 OF 2023 REPORTABLE

power, the Rules for election was framed. Rule 23 states that if any question

arises as to the validity of any election, the question shall be referred under

Section 24 to the State Government, whose decision shall be final.

41. From a conjoint reading of Section 24 and Rule 23, it is evident that

the power to decide any dispute arising regarding such election has been

vested upon the State Government who shall exercise the jurisdiction vested

upon it by the statute which conferred such jurisdiction.

42. Section 24 uses the expression "any dispute arises regarding any such

election". Such expression has a very wide connotation. The said expression

necessarily implies that any dispute arising out of such election can be

raised only before the authority vested with such power under the statute

and in the manner and the time as prescribed under the relevant Rules.

This court has to thus consider whether rejection of nomination can be said

to be a dispute arising out of such election.

43. The right to contest the election flows from the said statute. Therefore,

such right shall have to be exercised strictly in accordance with the

provisions of such statute and shall be subject to the limitations imposed by

it.

44. Rejection of nomination, no doubt, curtails the right of the nominee to

contest the elections. But the question remains as to the forum and the

stage for redressal of such grievances.

45. The learned Single Judge was of the view that rejection of nomination of

the writ petitioners caused serious injustice to them and for such reason the

MAT NO. 411 OF 2023 REPORTABLE

writ court interfered in the matter. The learned Single Judge also took great

pains to look into the reasons for rejection of nomination to ascertain as to

whether such rejection was proper or not. Furthermore, the learned Single

Judge was of the view that the objection to the impugned rejections was

within the parameters of Rule 5(1) as, according to the writ court, there is

no time limit within which such objection is to be taken. On such findings

the objection against rejection of nominations were allowed.

46. Mr. Chatterjee would contend that the concerned authorities failed to

perform their duties vested upon them by not hearing out the objections

against rejection of nominations. In order to decide the issue raised by Mr.

Chatterjee, it would be profitable to refer to Rule 5 and, therefore, the same

is extracted hereinbelow.

"5.(1) On the date and at the time as fixed for the scrutiny of nominations by the notification under Rule 2, the Returning Officer shall scrutinise all the nomination papers strictly with reference to the final electoral roll and decide which of them are in order and which are not. Nomination papers which do not comply with the requirements of Rule 3 shall be rejected. If there be any objection by any candidate to the decision of the Returning Officer, it must be made forthwith, and the objections shall be heard by the Returning Officer and two members of the Council, not being candidates for the election, appointed by the President, and their decision thereon shall be final.

(2) Every nominee for whom nomination paper has been received and one representative duly authorised by him in writing, or his proposer or seconder, shall be entitled to be present at the time of the scrutiny of nominations."

MAT NO. 411 OF 2023 REPORTABLE

47. Sub rule (2) of Rule 5 entitles every nominee and one duly authorised

representative or his proposer or seconder to be present at the time of

scrutiny. The object behind insertion of such provision is to afford an

opportunity to a nominee to raise an objection at the spot in case he is

aggrieved by the decision of the Returning Officer. Though no time limit has

been fixed for filing of objection under Rule 5(1) but the said rule uses the

expression "forthwith". It is well settled that if the meanings of words used

in the relevant statutes or the rules framed thereunder cannot be gathered

therefrom the dictionaries may be used as an aid to resolve an ambiguity.

The Hon'ble Supreme Court in the case of Commissioner of Wealth Tax,

Andhra Pradesh Versus Officer-in-Charge (Court of Wards), Paigah 13

held that the ordinary dictionary meaning cannot be discarded simply

because it is given in a dictionary and to do that would be to destroy the

literal rule of interpretation. It was further observed therein that it is a basic

rule to rely upon the ordinary dictionary meaning which, in the absence of

some overriding or special reasons to justify a departure, must prevail.

Therefore, the dictionary meaning of the word "forthwith" can be relied upon

in order to resolve an ambiguity as to the time limit within which the

objection under Rule 5(1) is to be filed.

48. The word "forthwith" has been defined in Black's Law Dictionary to mean

immediately, without delay. It also means directly, promptly, within a

reasonable time under the circumstances.

1976 (3) SCC 864

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49. Upon a harmonious reading of sub rules (1) and (2) of Rule 5, I hold that

the objection against rejection of nomination is to be made immediately and

without any delay i.e., it should be made at the spot or within a reasonable

time immediately thereafter.

50. Even if for some reason, the objection against nomination could not be

made at the spot, the same has to be done within a reasonable time.

Reasonable time, however, shall depend on the facts of each case. In this

regard it is to be borne in mind that the list of nominated candidates are to

be published after the last date of withdrawal of nominations and several

steps are to be undertaken thereafter in terms of the relevant rules more

particularly Rule 8 thereof.

51. Record reveals that in pursuance of Rule 8(1) of the Election Rules, the

names of the nominated Registered Pharmacist was published on December

27, 2022 in the Kolkata Gazette. The authorities cannot, however, be faulted

for publication of the names of nominated candidates in terms of Rule 8(1)

on December 27, 2022. The objections were filed only after such publication

for reasons best known to the writ petitioners. Considering the relevant

dates for scrutiny of nomination; withdrawal of nomination and the

publication of the names of nominated candidates, the objection filed on

January 1, 2023 cannot be held to be within the reasonable time in the facts

of the case on hand. Therefore, the objection filed on January 1, 2023

against the order of rejection is a highly belated one. For such reason, I hold

that the objection dated January 1, 2023 cannot fall within the parameters

of Rule 5(1).

MAT NO. 411 OF 2023 REPORTABLE

52. Mr. Chatterjee would contend that the letter dated 19.12.2022 ought to

have been considered as an objection. I cannot accept such contention as

from a bare reading of the said letters it is evident that the said letters were

issued only to know the reasons for rejection of nomination. I therefore hold

that the letter dated 19.12.2022 cannot be construed to be the objection as

per Rule 5.

53. In my considered view, the writ court should not have embarked upon an

enquiry into the reasons for rejection of nomination papers as the objection

do not fall within the parameters of Rule 5(1) in view of the observations

made hereinbefore.

54. Mr. Chatterjee would contend that if it can be shown that injustice has

been caused due to improper rejection of nomination, the writ court can

certainly step in and interfere.

55. It is not in dispute that three out of four writ petitioners were present at

the time of scrutiny. Therefore, it shall be deemed that they were aware of

the reasons for rejection of their nominations at the time of such scrutiny.

The remaining writ petitioner, for reasons best known to him/her did not

attend at the time of scrutiny. However, their request for disclosing the

reasons for rejection was duly complied with. The writ petitioners even after

being made aware of the reasons for rejection did not avail of the remedies

provided under the statute promptly and in the manner as provided therein.

Therefore, no injustice can be said to have been done to the writ petitioner

as alleged by them.

MAT NO. 411 OF 2023 REPORTABLE

56. By referring to the grounds of rejection, Mr. Chatterjee would contend

that the nomination of the writ petitioner were rejected by the Returning

Officer on extraneous considerations. The substratum of the impugned

order is the grounds for rejection which is the secondary issue and the

primary being whether such an order could be challenged under Article 226

of the Constitution of India. The secondary issue will be considered if the

primary issue is decided in favour of the writ petitioners.

57. For the purpose of deciding whether an improper rejection of nomination

can be challenged by approaching the writ court, I shall now deal with the

various decision on the said issue.

58. The issue as to whether improper rejection of nomination can be assailed

by filing an application under Article 226 of the Constitution of India came

up for consideration before the Constitution Bench of the Hon'ble Supreme

Court of India in the case of N.P. Ponnuswami Versus Returning Officer,

Namakhal Constituency, Namakhal, Salem District 14.

Six Hon'ble Judges of the Hon'ble Supreme Court held thus-

"15. The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, as I shall point out latter, seems to be that any

(1952) 1 SCC 94

MAT NO. 411 OF 2023 REPORTABLE

matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a Special Tribunal and should not be brought up at an intermediate stage before any court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question. Article 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like article 329(b) and in setting up a Special Tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the Election Tribunal which is to be an independent body, at the stage when the matter is brought up before it."

"25. The conclusions which I have arrived at may be summed up briefly as follows :-

(1) Having regard to the important functions which the legislature have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.

(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election :" and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed,

MAT NO. 411 OF 2023 REPORTABLE

would have the effect of vitiating the "election " and enable the person affected to call it in question, they should be brought up before a Special Tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress."

59. The Hon'ble Supreme Court in paragraph 40 of the said reports held as

follows-

"40. We are informed that besides the Madras High Court, seven other State High Courts have held that they have no jurisdiction under article 226 of the Constitution of the entertain petitions regarding improper rejection of nomination papers. This view is, in my opinion, correct and must be affirmed. The appeal must, therefore, fail and is dismissed. In view of the nature and importance of the points raised in this appeal, there should be no order to costs."

60. Ponnuswami (supra) held against the maintainability of writ petitions

while the election is in progress.

61. However, the Hon'ble Supreme Court in Mohinder Singh Gill Versus

Chief Election Commissioner 15 provided a window to an affected party to

approach the writ court in connection with election matters.

62. The Constitution Bench of the Hon'ble Supreme Court of India in the

case of Mohinder Singh Gill (supra) held thus-

29. Thus, there are two types of decisions, two types of challenges. The first relates to proceedings which interfere with the progress of the election. The second accelerates the completion of the election and acts in furtherance of an election. So, the short question before us, in the light of the illumination derived from Ponnuswami, is as to whether the order for re-poll of the Chief Election Commissioner is "anything done

(1978) 1 SCC 405

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towards the completion of the election proceeding' and whether the proceedings before the High Court facilitated the election process or halted its progress. The question immediately arises as to whether the relief sought in the writ petition by the present appellant amounted to calling in question the election. This, in turn, revolves round the point as to whether the cancellation of the poll and the reordering of fresh poll is "part of election" and challenging it is "calling it in question".

63. In Mohinder Single Gill (supra) it was held that an approach made to

the writ Court will be maintainable if it is to facilitate the completion of

election and the writ petition will be barred if a step in the election is called

in question.

64. Three Hon'ble Judges of the Supreme Court of India in the case of

Election Commission of India through Secretary vs. Ashok Kumar

and others 16 took into consideration the decision in the case of

Ponnuswami (supra) and Mohinder Singh Gill (supra) and in Pragraph

19 of the said decision observed as follows-

"19. However, the Constitution Bench in Mohinder Singh Gills case could not resist commenting on Ponnuswami case by observing (vide para 25) that the non-obstante clause in Article 329 pushes out Article 226 where the dispute takes the form of calling in question an election, except in special situations pointed out at, but left unexplored in Ponnuswami case."

65. In Paragraph 27 of Ashok Kumar it was observed that in Mohinder

Singh Gill case it was held that a writ petition challenging the cancellation

of poll coupled with repoll amounted to calling in question a step in

"election". It further noted that in Paragraph 32 of Mohinder Singh Gill it

(2000) 8 SCC 216

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has been observed that had it been a case of mere cancellation without an

order for repoll, the course of election would have been thwarted and

different considerations would have come into play.

66. In Paragraph 32 of Ashok Kumar (supra) the Hon'ble Supreme Court

summed up the conclusions by partly restating what the aforesaid two

constitution Benches have already said and then clarifying what follows

therefrom.

"32. 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 proceedings 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 proceedings 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 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.

MAT NO. 411 OF 2023 REPORTABLE

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 proceedings, 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 courts 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 court would act with reluctance and 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."

67. It therefore, follows from the observations made in Mohinder Singh Gill

case and Ashok Kumar's Case that invocation of judicial remedy has to be

postponed till after the completion of proceedings in election if an election

is called in question. However, if the approach made is to facilitate the

completion of the election, such challenge before the Court would not be

barred. Any action taken or orders passed by the authorities vested with

the power to conduct election can be made the subject matter of judicial

review on the ground of mala fide or arbitrary exercise of power of such

authorities if the approach does not amount to calling in question an

election.

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68. Therefore, there is no conflict in between the decisions of the Hon'ble

Supreme Court in Ponnuswami (supra) on one hand and Mohinder

Singh Gill (supra) and Ashok Kumar (supra) on the other hand insofar

as the maintainability of writ petition qua the challenges which tends to

interrupt, obstruct or protract the election. All the aforesaid decision have

held against the maintainability of writ petitions wherein challenges have

been made against any step connected with the process of election before

declaration of the results if it has the effect of interrupting, obstructing or

protracting the election.

69. Now the question arises whether improper rejection of nominations can

be challenged by filing a writ petition.

70. A Hon'ble Division Bench of the Bombay High Court, after noticing

conflict of opinion of two different Division Benches on the point whether

writ petitions under Article 226 of the Constitution of India would be

maintainable challenging the orders of rejection of nomination form

thought it appropriate to refer three issues for decision by a larger bench

and one of such issue which is relevant for the case on hand was as

follows-

(1) 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.

MAT NO. 411 OF 2023 REPORTABLE

71. The larger bench was thereafter constituted and the Full Bench of the

Hon'ble Bombay High Court in the case of Karma Veer Tulshiram

Autade and ors. Versus State Election Commission, Mumbai and ors.

17 answered the reference.

72. Three Hon'ble Judges of the Bombay High Court after considering the

decisions in the cases of Ponnuswami (supra), Mohinder Singh Gill (supra)

and Ashok Kumar (supra) in paragraph 60 of the said reports held thus-

"60. ************** Whatever be the reason for rejection of nomination, its quality ~ sub-standard or otherwise ~ is neither material nor relevant when the challenge is laid at an intermediate stage of the election by an intending candidate seeking orders from the Court to participate in the election though the Returning Officer has rejected his nomination. We hold so in view of the Court in N.P.Ponnuswami (supra) not even considering it necessary to refer to the grounds of rejection of the nomination paper of the appellant in view of the clear enunciation of law that the law of election does not contemplate an intermediary challenge when, by law, a forum is constituted and made available by any statute for resolution of an election dispute which would take within its fold validity of an election challenged on the ground of improper rejection of the nomination paper." (emphasis supplied)

73. The Full Bench in Para 68 of the case of Karma Veer Tulshiram

Autade (supra) held thus-

"68. For the reasons aforesaid, while agreeing with the view in Vinod Pandurang Bharsakade (supra), we answer the fundamental question as formulated in paragraph 27 in the negative. As a sequel thereto, we answer the questions referred by the Division Bench in the manner as follows:-

AIR 2021 Bom 90

MAT NO. 411 OF 2023 REPORTABLE

(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 subserve 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) ***********************

(iii) ********************* "

74. The Full Bench of the Bombay High Court after noticing various

decisions of the Hon'ble Supreme Court in Paragraph 66 of the reports held

that the finding arrived at by the Division Bench that the ban against

entertaining writ petitions as enunciated in N.P. Ponnuswami (supra) has

been diluted is based on erroneous and incorrect reading of Mohinder

Singh Gill (supra) and Ashok Kumar (supra).

75. Issue of rejection of nomination papers was raised in Ponnuswami

(supra) and it was held that writ petitions challenging improper rejection of

nominations should not be entertained. Mohinder Singh Gill (supra) and

Ashok Kumar (supra) did not express any view contrary to or in conflict

with the view expressed in Ponnuswami (supra) on the maintainability of

writ petition against rejection of nominations.

76. In view of the aforesaid discussion and observations, I hold that the

decision of Ponnuswami (supra) still holds the field on the issue involved

in this appeal.

77. It is accordingly held that an approach made before the writ court

challenging nomination form cannot be said to be a step to facilitate the

MAT NO. 411 OF 2023 REPORTABLE

election and rejection of nomination papers is a dispute arising out of

election and improper rejection of nomination can be a ground to challenge

the validity of an election.

78. The Hon'ble Supreme Court in Shaji K. Joseph (supra) after noticing

several decisions of the Hon'ble Supreme Court including Ponnuswami

(supra) held that the High Court should not have interfered with the

election after commencement of the election process even after observing

that it prima facie appears that the respondent therein had the eligibility to

contest the election.

"15. In our opinion, the High Court was not right in interfering with the process of election especially when the process of election had started upon publication of the election programme on 27-1- 2011 and more particularly when an alternative statutory remedy was available to Respondent no.1 by way of referring the dispute to the Central Government as per the provisions of Section 5 of the Act read with Regulation 20 of the Regulations. So far as the issue with regard to eligibility of Respondent no.1 for contesting the election is concerned, though prima facie it appears that Respondent no.1 could contest the election, we do not propose to go into the said issue because, in our opinion, as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect that whenever the process of election starts, normally courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without court's order. Very often, for frivolous reasons candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election and getting an elected body to run the administration is

MAT NO. 411 OF 2023 REPORTABLE

frustrated. For the aforestated reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election. (emphasis supplied)

16. This Court, in N.P. Ponnuswami v. Returning Officer (supra) has held that once the election process starts, it would not be proper for the courts to interfere with the election process. Similar view was taken by this Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra ."

79. In view of the aforesaid well settled binding precedents, the question

raised in this appeal has to be necessarily answered in the negative. I,

therefore, hold that improper rejection of nomination, cannot be assailed

by filing an application under Article 226 of the Constitution of India and

the learned Single Judge was not justified in allowing the objection against

rejection of nomination while the election was in progress.

80. For the reasons as aforesaid, I am inclined to interfere with the order

impugned.

81. Accordingly this appeal stands allowed. The impugned order dated

February 28, 2023 stands set aside and quashed. Consequently the writ

petition being WPA 509 of 2023 stands dismissed. There shall be a

direction upon the Returning Officer to conclude the election process and