Gujarat High Court
Sukeshbhai Meghjibhai Bavalia vs State Election Commission on 26 February, 2021
Bench: J.B.Pardiwala, Ilesh J. Vora
C/SCA/3402/2021 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3402 of 2021
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 3402 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/-
and
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
================================================================
1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
SUKESHBHAI MEGHJIBHAI BAVALIA
Versus
STATE ELECTION COMMISSION
================================================================
Appearance:
MR AJ YAGNIK for the Petitioner(s) No. 1,10,11,12,13,14,2,3,4,5,6,7,8,9.
MR MIHIR JOSHI, SR.ADVOCATE with MS ROOPAL R PATEL for the
Respondent(s) No. 1.
MS MANISHA LAVKUMAR SHAH, GOVT. PLEADER with MS AISHVARYA
GUPTA, AGP for the Respondent(s) No. 2, 3.
================================================================
CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 26/02/2021
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
Page 1 of 102
Downloaded on : Sat Feb 27 14:30:17 IST 2021
C/SCA/3402/2021 CAV JUDGMENT
1. By this writapplication under Article 226 of the
Constitution of India, the writapplicants, desirous of contesting
election to the Botad District Panchayat, have prayed for the
following reliefs :
"(A) Your Lordships be pleased to quash and set aside the
impugned orders dated 15.02.2021 issued to the Petitioners
by the Respondent Election officer annexed hereto at
Annexure - D (colly) and be further pleased to declare the
same to be illegal, unconstitutional and arbitrary;
(B) Your Lordships Be pleased to direct respondents and
respondent election commission as well as election officer in
charge of Botad District Panchayat Elections to accept the
mandate/nomination of the petitioners and allow them to
contest election in accordance with law and the provisions of
the constitution;
(C) During the pendency and/or final disposal of the
present petition be pleased to direct respondent state
election commission and election officer in charge of Botad
District Panchayat Elections to accept the mandate/
nomination of the petitioners and allow them to contest
election in accordance with law and the provisions of the
constitution;
(D) Your Lordhips be pleased to dispense with the
affidavit of the Petitioner and be further pleased to dispense
Page 2 of 102
Downloaded on : Sat Feb 27 14:30:17 IST 2021
C/SCA/3402/2021 CAV JUDGMENT
with the typed copies of all annexures on account of the
prevailing pandemic;
(E) To grant any other and further reliefs that may be
deemed fit and proper and in the interest of justice."
2. The facts giving rise to this writapplication in the words of
the writapplicants themselves, as pleaded in the memorandum
of the writapplication, are as under :
"Cause of Action for preferring the present petition
The Petitioners have been constrained to approach this
Hon'ble Court calling for its interference in its plenary
powers as the petitioners despite having submitted their
Form both K and KH well within the stipulated deadline that
is before 3 PM on 13.02.2021 the Respondent Election
officer has refused to consider the nomination of the
Petitioners on account of the fact that there is a technical
error of not appending signatures of the representatives of
the party. Such refusal on part of the Respondent Election
officer is unwarranted and uncalled for especially since the
Petitioners removed the technical defects and submitted the
form before the time for scrutiny came to an end on at 3 PM
on 15.02.21.
It is further stated that all the required papers were
submitted by the Petitioners well within the time frame and
Page 3 of 102
Downloaded on : Sat Feb 27 14:30:17 IST 2021
C/SCA/3402/2021 CAV JUDGMENT
in accordance with law. However, the designated officers of
the party hadn't appended their signatures on FormK. It
must be noted that in as much as FormKH is concerned the
same is in order and complete and contains the signatures
as mandated in law.
The present petition is being filed, inter alia, seeking a
direction to the State Election Commission as well as
Election Officer in charge of Botad District to accept the
mandate of the petitioners and allow them to contest
election in accordance with law, failing which the election
would not be a free and fair election and rather it would be
an uncontested election since the nomination forms of all
members of one political party have been refused to be
accepted and which would lead to an uncontested win by
members of a particular party.
It is stated that the correct FormKH was submitted well
before the scrutiny period got over and the same has been
inwarded by the Respondent Election officer. However, due
to intervention by a Minister from the BJP, the Respondent
Election officer at the last moment refused to accept the
changed/rectified forms. It its stated and submitted that
just a few days ago in a similar factual backdrop, the
election officer at Rajkot had permitted the contestants
therein to make amends and the subsequently amended
form was accepted by the election officer.
Page 4 of 102
Downloaded on : Sat Feb 27 14:30:17 IST 2021
C/SCA/3402/2021 CAV JUDGMENT
The petitioners have made formal representations to various
authorities which have gone unattended to and unanswered
and hence the petitioners have no other remedy than to
approach this Hon'ble Court.
Hence the present petition.
The petitioners are citizens of India and are entitled to the
protection and enforcement of fundamental rights, statutory
rights and other established rights by invoking writ
jurisdiction under Article 226 of the Constitution of India.
Respondent No. 1 is the State Election Commission
represented through the Election Commissioner. Respondent
No. 2 is the Election Officer in charge of the District
Panchayat Elections, District Botad. Respondent No. 3 is the
Collector, District Botad. Therefore, they are all "State" as
enshrined in Article 12 of the Constitution of India and thus
writ petition under Article 226 of the Constitution of India is
maintainable against them.
FACTS:
It is stated that the petitioners are residents of District Botad
whose names are included in the voters list.
Page 5 of 102
Downloaded on : Sat Feb 27 14:30:17 IST 2021
C/SCA/3402/2021 CAV JUDGMENT
It is stated that all the petitioners are contesting for the
Panchayat Elections to be held at the Talukas of Botad and
Gadhada, District Botad.
It is further stated that the respondent State Election
Commission after deferring the conduct of elections once due
to Corona, has issued the fresh schedule of elections and
the same process is now underway.
It is stated and submitted that the nominations were to be
filed/submitted from 8th February, 2021 to 13th February,
2021. It is stated that all the petitioners who have their
affiliation towards the same political party have submitted
their nomination papers to the respondent Election Officer
for contesting the Panchayat Elections.
It is stated that pursuant to filing/submitting of nomination
papers with the respondent Election Officer, the petitioners
are further required to submit two more forms being FormK
and FormKH.
It is stated that FormK is a common form submitted on
behalf of all the candidates of a single party stating that the
candidates will contest on the party symbol as stated of
their party. The said form too including the names of the
petitioners has been duly submitted.
Page 6 of 102
Downloaded on : Sat Feb 27 14:30:17 IST 2021
C/SCA/3402/2021 CAV JUDGMENT
It is stated and submitted that pursuant to submission of
FormK and nominations papers, on 13.02.2021, the
petitioners were required to submit their individual FormKH
which is also known as the mandate/mandate form to the
respondent Election Officer. The said form was to be
submitted duly filled by 03:00 PM on 13.02.2021 to the
respondent election officer.
It is further stated and submitted that in as much as Form
KH is concerned, the same is in order and with no defects
whatsoever. However, FormK which states that the
candidates will contest on the party symbol as stated of
their party lacked the signatures of Shri Patel Balubhai
Baldevdas (CharimanElection Committee) and Shri Dave
Vijay Ratilal (Vice President) who are the designated/
responsible officers of the Congress Party. It is stated and
submitted that the signature of the Party President that is
Shri Amit Ajitsinh Chavda was very much there in FormK.
It is stated and submitted that when form came to be
submitted, the Respondent Election officer made an
endorsement that since the signatures of the aforesaid
persons was not there, the from needed to be re submitted
before 3 PM. Since the persons whose signatures needed to
be obtained were in Ahmedabad, it took sometime to get
their signatures and the same could be obtained only by 6
Page 7 of 102
Downloaded on : Sat Feb 27 14:30:17 IST 2021
C/SCA/3402/2021 CAV JUDGMENT
PM on 13.02.2021 and by that time the office of the
Respondent Election officer had been shut.
It is stated and submitted that once again on Monday, i.e.
the 15th of February, 2021, the Petitioners herein,
approached the Respondent Election officer who informed
them that there was a technical error in the forms submitted
and that the same must be rectified and re submitted so
that it can be further processed. That the Petitioners who
had already gone there with the rectified forms got the same
inwarded and the Respondent Election officer informed them
that there was noting to worry and that the forms would
now be scrutinised in accordance with law.
After the verbal assurance was given by the Respondent
Election Officer that the Petitioners didn't need to worry
since they had given the rectified FormK and that there was
no other defect in the forms, some of the Petitioners left the
office of the Respondent Election officer and some stayed
back. Thereafter a Minister of the ruling party in the State of
Gujarat Shri Saurabh Patel who is also the MLA from Botad,
visited the office of the Election officer and was present
there for at lest 2 hours to say the least. Around 3 PM, the
Petitioners were informed that their nominations had been
rejected.
It is stated and submitted that around 4 PM on 15.2.2021,
the Petitioners herein addressed representations to the
Page 8 of 102
Downloaded on : Sat Feb 27 14:30:17 IST 2021
C/SCA/3402/2021 CAV JUDGMENT
Respondent Election officers for both Botad and Gadhada
Talukas requesting the officers to reconsider their decision of
rejection and permit the Petitioners to contest elections a
similar representation was made to the Respondent District
Collector as well.
It is stated and submitted that FormK that is termed as
defective by the Respondent Election officer was submitted
in the past to the State Election Commission by the
Congress Party hear quarters, Ahmedabad. The said form
bears the signatures of the persons authorized by the party
and is not lacking in any manner whatsoever.
It is stated and submitted that the Petitioners place heavy
reliance upon rule 12 and rule 15 of the Gujarat Panchayats
Election Rules, 1994. The said rules are with regards to the
presentation of nomination papers and requirement for a
valid nomination and the scrutiny process undertaken for
nomination papers. The sum and substance of the said rules
that upon which reliance is being placed is that any clerical
or technical error is rectifiable and can be permitted to be
rectified as long as it is an error that is not of a substantial
character. It is stated and submitted that the nomination
papers of the Petitioners are absolutely intact and in
accordance with law. What was lacking was only the
mandate and during the hearing of Special Civil Application
No. 3213/2021 on 15.2.2021, the State Election
Commissioner Shri Sanjay Prasad had made a statement
Page 9 of 102
Downloaded on : Sat Feb 27 14:30:17 IST 2021
C/SCA/3402/2021 CAV JUDGMENT
that "nomination is subject to statutory requirements and
the mandate of the law, however, when it comes to
mandate, the same is subject to guidelines" and therefore
the Election officer has the discretion in that regard and is
not strictly bound by the letter of the law. Furthermore, it is
stated and submitted that the issue at hand is partly
covered by the decision of this Hon'ble Court in the case of
Nathabhai Devabhai Zala Vs. State of Gujarat in (SCA
19261/2016) dated 23.11.2016.
It is stated and submitted that the entire process must
contain 4 stages namely intimation, inquiry, hearing and
decision. That the Petitioners herein were directly served
upon the with the impugned orders annexed at Annexure -
D to this Petition. The Petitioners were not heard and
therefore the impugned orders are in violation of the
principles of natural Justice and the same being violative of
Article 14 of the Constitution of India, deserves to be
quashed and set aside by this Hon'ble Court.
It is stated and submitted that it is an admitted position that
all the requisite papers/forms were submitted before the
deadline on 13.2.21 at 3 PM. It is not the case that some
paper/form was missing or not submitted. That the said
forms were submitted by the concerned officers along with
all the Petitioners herein. Therefore, all the Petitioners herein
had physically gone on 13.02.21 to supply the forms to the
Respondent Election officer. That thereafter on 15.02.21 on
Page 10 of 102
Downloaded on : Sat Feb 27 14:30:17 IST 2021
C/SCA/3402/2021 CAV JUDGMENT
the date of scrutiny, once again, all the Petitioners were
physically present at the office of the Respondent election
officer and the rectified FormK with the signatures that
were missing before, came to be submitted and was
inwarded around 10 in the morning and an oral assurance
was given that now there was no shortcoming or deficit and
that they would be eligible to contest elections. Thereafter,
the sitting Minister Shri Saurabh Patel visited the said
premises and met the election officer for a period of almost 2
hours subsequent to which immediately and to the utter
shock of the Petitioners, the officer stated that their
nominations had been rejected and the order of such
rejection came to be supplied around 7 PM to the Petitioners
herein on 15.2.21.
It is stated and submitted that the presence of the BJP
Minister and the subsequent behaviour of the Election officer
smacks of malice and dishonesty. There has been a foul
play and the integrity of the Election officer is questionable
especially since the very same officer had intimated the
Petitioners herein to rectify the infirmity and supply the
rectified FormK at 10 in the morning. All of a sudden at
around 2.30 PM a complete U turn is taken by the very same
officer and such behaviour is no coincidence to say the least.
It is stated and submitted that the Respondent Election
officer has not acted impartially and independently but
rather towed the line as drawn by the political masters
therefore bringing into disrepute the office of the State
Page 11 of 102
Downloaded on : Sat Feb 27 14:30:17 IST 2021
C/SCA/3402/2021 CAV JUDGMENT
Election Commission and shattering the faith of the Citizens
reposed in such authority. The entire process it is
respectfully submitted can be termed as a corrupt practice
and the whole process not being free and fair and
transparent, deserves to be set aside by this Hon'ble Court.
Time and again, the Writ Courts have interfered when
election processes are marred by corrupt practices and
malafide. The present case also deserves interference by
this Hon'ble Court as the conduct of the Respondent Election
officer smacks of dishonesty, arbitrariness and malafide.
Therefore, it is stated and submitted that the present
petition is being filed, inter alia, seeking a direction to the
State Election Commission as well as Election Officer in
charge of Botad District Panchayat elections to accept the
mandate of the petitioners and allow them to contest
election in accordance with law, failing which the election
would not be a free and fair election and rather it would be
an uncontested election since the Petitioners all representing
the same political party would not be permitted to contest
elections."
3. Thus, it appears that the nomination forms of the writ
applicants for the purpose of contesting the ensuing Botad
District Panchayat election came to be rejected by the Returning
Officer vide order dated 15th February 2021 (AnnexureD
collectively). One such order reads thus :
Page 12 of 102
Downloaded on : Sat Feb 27 14:30:17 IST 2021
C/SCA/3402/2021 CAV JUDGMENT
"Read :
(1) Notification No.RaChaPChatanPachatBotad - Dist.
Panchayat 2021/1 dated 08.02.2021;
(2) Rule 15(2)(a) of the Gujarat Panchayats Elections
Rules, 1994;
(3) Order No.RaChaP/Chatan/Local Const. 221(1)22012
K dated 08.02.2012 of the Secretary, State Election
Commission.
(4) Application letter dated 15.02.2021 of the President,
Botad District Congress Samiti.
(5) Objection application dated 15.02.2021 of the
President, Botad District, Bharatiya Janta Party.
The general election to the Botad District Panchayat is
scheduled on 28.02.2021 as per the above referred
Notification dated 08.02.21, for which the procedure for
accepting the nomination forms was undertaken between
08.02.2021 and 13.02.2021.
The mandates in FormK and FormKH, which are required
to be submitted along with the nomination forms of the
candidates from the Indian National Congress, were
submitted on 13.02.2021 at 14:43 hours, that is, well before
15:00 hours on the last date for accepting the nomination
forms. However, the FormK, which is required to be signed
by the authorized representative of the political party
concerned, was not bearing the signature of the authorized
representative and the President, Indian National Congress
party, was also orally informed about the same. The
Page 13 of 102
Downloaded on : Sat Feb 27 14:30:17 IST 2021
C/SCA/3402/2021 CAV JUDGMENT
scrutiny of the nomination forms was undertaken between
10:00 and 15:00 hours on 15.02.2021.
As per the above referred Serial No.4, the FormK duly
signed by the authorized representative of a political party,
i.e. the Indian National Congress, was submitted on
15.02.2021 at 13:20 hours. However, the same was not
bearing the signature of the authorized representative at the
place kept for the signature of the authorized representative.
It has been mentioned that the same happened through
inadvertence.
During the scrutiny of the nomination forms, the party
President of the Botad District Bharatiya Janta Party, vide
the above referred Serial No.5, raised objection with regard
to the FormK.
Considering all the relevant facts as well as the above
referred Serial Nos.2 and 3, the following order has been
passed :
ORDER
As per subrule 2(a) of rule 15 of the Gujarat Panchayats
Elections Rules, 1994 and subclauses (3), (4) and (5) of
clause 15 of the Order dated 08.02.2012 of the Secretary,
State Election Commission, Gandhinagar, it has been stated
that the specimen signature as well as the name of the
authorized representative are required to be sent to the
concerned Returning Officer and the Secretary, State
Election Commission, latest before 3:00 p.m. on the last date
for submission of the nomination forms. The Indian National
Congress party submitted the same on 13.02.2021 at 14:43
hours. However, the FormK was not bearing the signature
of the authorized representative.
Considering the above referred facts, it is ordered to treat
the nomination forms submitted by the candidates from the
Indian National Congress party as 'invalid' for the below
mentioned 7 seats of the Botad District Panchayat for the
reasons that the FormK submitted along with the
nomination forms was not bearing the signature of the
authorized representative :
Sr. Name of the Candidate Seat no. and Description of the
No. Name Seat
1 Muliben Nagarbhai 1-Bhambhan Scheduled Caste -
Makwana Woman
2 Rajubhai Tejabhai Mer 6-Kaniyad Unreserved -
General
3 Rekhaben Jagdishbhai 8-Lakheni General - Woman
Savani
4 Nareshbhai 9-Lathidad Scheduled Tribe
Gordhanbhai Bhil
5 Hirabhai Narshibhai 14-Paliyad Unreserved -
Zanpadiya General
6 Vanitaben Rameshbhai 16-Sarva General - Woman
Mer
7 Sukeshbhai Meghjibhai 17-Turkha Unreserved -
Bavaliya General
4. It is not in dispute, as fairly conceded by the learned
counsel appearing for the writapplicants, that FormK attached
with the nomination form did not contain the requisite
signatures of two responsible officers of the political party
authorized by the party President to issue the mandate in favour
of the writapplicants. However, the principal argument is that
such deficiency or lacuna in FormK should have been treated as
a technical defect and not one of a substantial character. In
other words, only on account of deficient or invalid FormK
attached to each of the nomination forms, the nomination forms
ought not to have been rejected. The case put up is that the writ
applicants should have been permitted to rectify the error and
place the valid FormK on record.
SUBMISSIONS ON BEHALF OF THE WRITAPPLICANTS :
5. Mr.Anand Yagnik, the learned counsel appearing for the
writapplicants put forward the following submissions :
(a) In the backdrop of the fact that the FormK of the writ
applicants contain signature of the State Party President of the
Indian National Congress and FormKH contains the signature of
an authorised representative together with the fact that the State
Election Commission on 12.2.21 has already received the signed
FormK duly forwarded by the writapplicants, the absence of
signatures of the authorised representative in FormK is not a
defect of substantial nature within the clause 15(4) of the
Allocation and Reservation of Party Symbols Order, 2008, framed
under rule 11 of the Gujarat Panchayats Elections Rules, 1994,
read with Article 243C of the Constitution of India. The
aforesaid amounts to substantial compliance with the
requirement in question, hence the impugned order rejecting the
nomination is illegal and Unconstitutional.
(b) Assuming for a moment that the absence of signature in
FormK of an authorised representative is a defect, it is not a
defect of substantial nature and in the factual matrix of the
present writapplication one of a peripheral nature. Such defect
falls within the scope and ambit of rule 15(4) of the Rules 1994
read with the Explanation. FormsK and KH respectively flowing
from rule 11 of the Rules together with the declaration by the
party candidate in Form no.4 are the only three documents
dealing with the party symbols and are meant for the allocation
of the party symbols and, therefore, with such peripheral defect,
the nomination forms could not have been rejected.
(c) There is no defect of substantial nature in the nomination
form. The absence of signature of authorised representatives in
FormK as against the presence of signature of the party
President in FormK does not exclude during the scrutiny under
rule 15 of the rules the summary inquiry which involves : (1)
intimation about objection, (2) holding of inquiry, (3) giving
opportunity of being heard which includes the right of rebuttal
and, (4) final decision. When the nomination Form together with
the nine annexures therewith is in accordance with law, the
FormKH is in accordance with law, then the failure on the part
of the Returning Officer to hold a summary inquiry during the
scrutiny is in violation of rules 15(2)(4) & (5) respectively of the
Rules and, therefore, the rejection of the nomination forms is
illegal and unconstitutional.
(d) When an objection is raised by the candidate of the
opposite party in writing behind the back of the writapplicants
and the attention in that regard is not drawn to by the Returning
Officer before the rejection of the nomination papers together
with the failure to hold summary inquiry and offer a right of
rebuttal in the factual matrix of the present writapplication, the
same would be in abject violation of rules 15(2), (4) and (5)
respectively of the Rules and, therefore, the rejection of the
nomination forms of the writapplicants is illegal and
unconstitutional.
(e) The right of rebuttal includes the presentation of
documents in support of the nomination forms to meet with the
objections raised by the other contesting candidates or when the
objection is raised suo motu by the Returning Officer, the
presentation of FormK with the signatures of the two authorised
representatives during the scrutiny and acceptance of the same
with due acknowledgment by the office of the Returning Officer
without any negative endorsement is not a rectification of a
defect of substantial nature but only assertion and assurance
that the FormKH giving individual mandate is indeed signed by
an authorised representative of the party on whose symbol the
writapplicants are seeking to contest election. Hence the refusal
to accept the FormK with the signature of two authorised
representatives on the date of scrutiny is failure to provide right
to rebuttal of an objection in violation of rule 15(5) of the Rules
and therefore bad in law.
(f) It is stated and submitted that the scrutiny rojkam does
not reflect the true position of how the scrutiny took place.
Scrutiny took place in two rounds on the date of scrutiny i.e. on
15.2.21. The first round of scrutiny was over with an oral
observation on the part of Returning Officer that all the forms
are accepted and same is videographed by the Returning
Officer. However, after the oral assurance was given and half of
the candidates left the office room of the Returning Officer, a
telephone call was received by the Returning Officer on his
mobile from Shri Saurabh Patel, a cabinet rank Minister
representing the Botad Constituency in the Legislative Assembly.
Due to these intervening factors the second round of scrutiny on
the date of scrutiny was undertaken behind the back of the writ
applicants. An objection was lodged by the candidates belonging
to the opposite party, viz. Bharatiya Janta Party, behind the
back of the writapplicants representing the Indian National
Congress and relying upon the same all the nominations were
rejected. The decision was given at about 7:00 pm on the date of
scrutiny and before that the Cabinet Minister Mr.Saurabh Patel
announced before the visual media that they had won the
election. Hence, the rejection of the nomination papers is
malafide and smacks of political intervention and, therefore, the
same is arbitrary, discriminatory, irrational and violative of
Article 14 of the Constitution of India.
6. Mr.Yagnik, in support of his submissions, has relied upon
the following decisions :
1. Kishorebhai Vallabhbhai Dhamelia vs. State of Gujarat and
others (SCA No.813 of 2013, decided on 30.01.2013);
2. Dineshbhai Palabhai Patar vs. Gujarat State Election
Commission and others (SCA No.19261 of 2016, decided
on 23.11.2016);
3. Vaghari Jasuben Gordhanbhai vs. State of Gujarat and
another (SCA No.21390 of 2016, decided on 23.12.2016);
4. Jayaben Vijaybhai Vasoya vs. State of Gujarat and others
(SCA No.20941 of 2016, decided on 26.12.2016);
5. Baria Ambaben Vikrambhai vs. State of Gujarat and
another, (2008)1 GLH 247;
6. Ramesh Rout vs. Rabindra Nath Rout, (2012)1 SCC 762;
7. Kalidas Karsanbhai Chavda vs. Returning Officer,
Vadodara Jilla Panchayat Elections, Chandod Dist.
Vadodara and another, 1981 GLH 167;
8. Rakesh Kumar vs. Sunil Kumar, (1999)2 SCC 489.
7. In such circumstances referred to above, Mr.Yagnik, the
learned counsel appearing for the writapplicants, prays that
there being merit in his writapplication, the same may be
allowed.
SUBMISSIONS ON BEHALF OF THE STATE
ELECTION COMMISSION :
8. Mr.Mihir Joshi, the learned senior counsel, assisted by
Ms.Roopal Patel, the learned counsel appearing for the State
Election Commission, put forward the following submissions :
(a) The elections to 32 District Panchayats and 231 Taluka
Panchayats are due on 28.02.2021. The relevant provisions in
law for the ongoing elections are as under:
A. Constitution of India: Articles 243K (Elections to
Panchayats) and 243O (Bar to interference by courts in
electoral matters)
B. Panchayats Act, 1993: Section 31 (Determination,
validity of election, inquiry by judge and procedure)
C. Gujarat Panchayats Elections Rules, 1994 (Rules, 11,
12 and 15)
(b) The political mandate granted in favour of a candidate to
contest elections of local bodies consists of FormK and FormKH
respectively.
(c) FormK is the authorisation by the Party President in
favour of person(s) to grant the political mandate in favour of the
contesting candidate.
(d) FormKH is the grant of the mandate in favour of the
contesting candidate.
(e) So far as the writapplicants nos.1 to 7 : candidates
contesting elections for the Botad District Panchayat from Botad
Taluka are concerned, the Election Officer is the Deputy
Collector, Botad. So far as the writapplicants nos.8 to 14:
candidates contesting elections for the Botad District Panchayat
from Gadhadha Taluka is concerned, the Election Officer is the
District Supply Officer, Botad.
(f) The writapplication has been preferred on account of the
rejection of the nomination forms as the FormK did not contain
the signature of the authorised representative of the party and
the same was not submitted before the deadline of 3:00 p.m. on
13.02.2021, but rather on 15.02.2021 at the time of the
scrutiny.
(g) There is no merit in the contention that the nonsigning of
the FormK is a defect in completing the declaration as to the
symbols and thus, the case of the writapplicants fall within the
ambit of Explanation to Rule 15(4) and that as the FormK has
been issued as a part of the Election Symbol (Reservation and
Allotment) Order, 2012, the same flows from Rule 11 and not
Rule 12 and, therefore, the nonsigning of the FormK cannot be
made a ground of rejection under Rule 15. The submission of
FormK which has not been duly signed by the authorised
representative within the time frame, would tantamount to non
submission of the mandate itself.
(h) Part III of Form No. 4 (Nomination paper) is a declaration to
be filled by the candidate. Such PartIII under (b)(i) contains a
declaration by the candidate that he/she is set up by a
particular political party. The subsequent clauses of such
declaration (b)(ii) pertain to the candidates who have not been
set up by a recognised political party or have contested as an
independent candidate.
(i) The evidence of such recognition by a political party is
contained in the political mandate. Merely, limiting the
importance of FormsK & KH respectively to that of allotment of
symbols would be undermining the role of the political mandate
which is the basis of the candidature of any candidate and
without which a candidate cannot be permitted to contest the
elections.
(j) In case, the candidate does not have the political mandate,
he/she can submit a form subscribed by one proposer and nine
seconders and can contest the elections as an independent
candidate.
(k) Relevant judgment: Ramesh Rout v. Rabindra Nath Rout
[2012 (1) SCC 762] - para 38 makes a reference to proviso to
Rule 4 of the Conduct of Elections Rules, 1961 (in context of
Representation of the People Act, 1951) and that the proviso
extends only to the defect made with regard to the declaration of
symbol in the forms annexed with the Rules and does not extend
to the forms required by a candidate set up by a political party
as per "The Election Symbol (Reservation and Allotment) Order,
1968" (upon which the 2012 order is based).
(l) Relevant Judgment: SCA No. 1539 to 1544 of 2013:
Mandate is a part of the nomination form.
(m) There is no merit in the contention that even if the defect is
not covered within the ambit of Rule 15(4), the same is a
technical defect and could have been corrected. The proviso to
subrule (3) of rule 12 provides that the Returning Officer shall
permit any clerical or technical error in the nomination paper in
regard to the said names or numbers to be corrected in order to
bring them in conformity with the corresponding entries in the
list of voters. Therefore, it is only if the names and numbers in
the list of voters of the candidate or his proposer or seconders as
entered in the nomination paper are not as those entered in the
list of voters, that the Returning Officer is required to draw the
attention of the candidate or his proposer or seconder as the
case may be, to this effect and to permit such error to be
corrected to bring them in conformity with the corresponding
entries in the list of voters. Except in the above circumstances,
the statute does not require the Returning Officer to draw the
notice of the candidate to any other deficiency nor does the
Returning Officer appear to be empowered to permit the
candidate to remove a deficiency other than that provided in
subrule (3) of rule 12 of the rules. - [paras 10 to 13 of Special
Civil Application no. 20941 of 2016].
(n) The power of the Returning Officer to rectify defects has
been considered at length by the Supreme Court in Rattan
Anmol Singh & Ram Prakash v. Ch. Atma Ram & Ors. [AIR
1954 SC 510]. The Supreme Court has clearly opined that at the
scrutiny stage, no rectification is permissible. If the defect is
technical, it will not matter and it is to be left as it is and thus,
rectification of any kind of defect, technical or substantial,
cannot be rectified at the stage of scrutiny.
(o) This Court has, in the Special Civil Application No. 20941
of 2016, relied upon the judgment of the Supreme Court in
Prahladdas Khandelwal v. Narendra Kumar Salve [1973 (3)
SCC 104]. Such judgment of the Supreme Court in Prahladdas
Khandelwal (supra), in turn relies upon Rattan Anmol Singh
(supra).
(p) There in no merit in the contention that an opportunity of
hearing or rebuttal should have been granted to the writ
applicants while conducting a summary inquiry as contemplated
under Rule 15.
(q) Rule 15(2) states that the Returning Officer may conduct a
summary inquiry, if any, as the officer thinks necessary. Thus, it
is completely the prerogative of the Returning Officer to:
a) Decide whether to conduct a summary inquiry;
b) and the mode and manner in which such inquiry can be
conducted.
(r) A distinction needs to be drawn between the right of
rebuttal and rectification of technical errors. The two cannot be
permitted to overlap. Rectification is permissible, only of
technical errors and that too, in respect of the limited aspects as
stated under Rule 12(3) and its proviso. Furthermore, such
rectification can take place only at the prescrutiny stage.
(s) Whereas, the question of rebuttal would arise provided the
nomination paper presented by the writapplicants was complete
in all aspects and an objection was raised on any ground, such
as disqualifications mentioned under Section 30 of the
Panchayats Act, 1993 (declaration of unsound mind, no
provision of toilet/water closet facility etc.).
(t) In the present case, the objections were raised by the
members of a political party, i.e. the candidates contesting from
the Botad Taluka. The rojkam produced from pages 235241
with the affidavit of the Returning Officer, Botad Taluka, would
indicate that the writapplicants were aware of such objection
being raised and were very much present during the scrutiny.
The details regarding the presence of the respective candidates
and/or their representatives during the scrutiny are produced in
para 11.17, page. 126 (affidavit of the Returning Officer, Botad
Taluka).
(u) In respect of the candidates contesting elections from the
Gadhada Taluka, no objection was raised by any political party,
but the scrutiny was undertaken by the Returning Officer, on
her own motion. Proposers of only two candidates (writ
applicants nos. 13 & 14) were present during the scrutiny. No
other writapplicant or his/her representative was present.
(v) In Resurgence India v. Election Commission of India &
Anr. [2014 (14) SCC 189], the Supreme Court has observed in
para 17, that a candidate who absents himself during the
scrutiny process, is avoiding a statutory inquiry being conducted
by the Returning Officer.
9. Mr.Mihir Joshi, in support of his aforesaid submissions,
has placed strong reliance on the following decisions of the
Supreme Court :
1. Ramesh Rout vs. Rabindra Nath Rout, (2012)1 SCC 762;
2. Rattan Anmol Singh and Ram Prakash vs. Ch.Atma Ram
and others, AIR 1954 SC 510;
3. Resurgence India vs. Election Commission of India and
another, (2014)14 SCC 189;
4. Prahladdas Khandelwal vs. Narendra Kumar Salve, (1973)3
SCC 104;
5. Ram Phal Kundu vs. Kamal Sharma, (2004)2 SCC 759.
10. In such circumstances referred to above, Mr.Joshi prays
that there being no merit in the present writapplication, the
same be rejected.
SUBMISSIONS ON BEHALF OF THE STATE -
RESPONDENTS :
11. Ms.Manisha Lavkumar Shah, the learned Government
Pleader, assisted by Ms.Aishvarya Gupta, the learned AGP,
appearing for the State - respondents first invited our attention
to few relevant averments made in the affidavitinreply filed by
the Returning Officer, Botad Taluka, to make good her
submission that the Returning Officer did give an opportunity to
the writapplicants to produce the valid FormK and FormKH on
13th February 2021 by 3:00 p.m., i.e. the statutory deadline,
however, the writapplicants were not able to produce the valid
FormK and FormKH and they sought to produce the same on
the date of the scrutiny, i.e. 15 th February 2021. We quote the
relevant observations in this regard thus :
"11.7 It is submitted that during the period between
08.02.2021 to 13.02.2021, the deponent received 32
nomination forms, including that of the nomination forms.
Petitioners Nos.1 to 7 and their respective dummy
candidates submitted their nomination forms on different
dates starting from 11.02.2021 to 13.02.2021. It should be
noted that for each electoral division, a political party fields
two candidates. One candidate is the main contesting
candidate and the other is a 'dummy candidate'. Such
'dummy candidate' fills up the nomination form as a back
up for the main candidate and in case, for some reason or
the other, the main candidate for such political party is
unable to contest the election, the dummy candidate
contests the election so that the party may not be deprived
of proper representation. Usually, dummy candidates
withdraw their nomination forms on the last date of
withdrawal of forms, unless some other contingency arises.
11.8 As indicated in the foregoing paragraphs, along with
the nomination form, Form K & Form KH are required to be
submitted to the Electoral officer before 3:00 pm on the last
date for submission of nomination forms as per Clause No.
15 of The Election symbol (reservation and allotment) order,
2012.
11.9 It should be noted that the petitioners (as well as
their respective dummy candidates) did not submit the
mandate of the political party (consisting of Form K and
Form KH) at the time of submission of their nomination
forms and thus, the petitioners were orally informed about
the requirement of submission of Forms K and KH and it
was categorically informed to them that the mandate needs
to be submitted before 13.02.2021.
11.10 On being so informed, the petitioners stated that
they would submit the mandate accordingly. The entire
proceedings of submission of nomination forms by various
candidates have been videographed by the office of the
deponent and that such categorical instructions were issued
to the petitioners can be substantiated by support of such
video. The deponent craves leave of the Hon'ble Court to
produce such video, as and when called upon to do so.
11.11 The details regarding the dates of submission of
nomination forms by the petitioners are reflected in a
tabular form as hereunder :
Sr. Name of Name of Date and time of
No. Constituency Candidate submission of
nomination form
Date Time
1. 17Turkha Sukeshbhai 12/2/2021 1402
Meghjibhai
Bavliya
2. 1Bhambhan Muliben 12/2/2021 1449
Nagarbhai
Makwana-
3. 6Kaniyad Rajubhai 13/2/2021 1130
Tejabhai Mer
4. 8Lakheni Rekhaben 11/2/2021 1159
Jagdishbhai
Savani -
5. 9Lathidad Nareshbhai 13/2/2021 1315
Gordhanbhai
Bhil Petitioner
No.5
6. 14Paliyad Hirabhai 13/2/2021 1155
Narshibhai
Zapdiya
7. 16Sarva Vanitaben 13/2/2021 1245
Rameshbhai Mer
11.12 It is pertinent to note that on 13.02.2021, at 2:43 pm, the
District President of the political party to which the petitioners
belong, came to the office of the deponent to submit the political
mandate on behalf of petitioners no. 1 to 7. At this juncture, it
needs to be brought to the attention of the Hon'ble Court, that the
deponent is under a statutory mandate to accept nomination
forms and political mandates only until 3:00 pm. Thus, the time at
which the political mandates were sought to be submitted to the
deponent, is relevant.
11.13 It is pertinent to note that at the time of submission of
political mandate, it was found by the deponent that the FormK
which is the authorisation in favour of a person to issue a
mandate to persons seeking to contest elections on the party ticket
by the Party President, did not contain the signature of such
authorised representative. It was specifically brought to the
attention of the representative of the petitioners, that the signed
FormK constituting the valid political mandate needs to be
submitted before 3:00 pm on the last date for submission of the
nomination form, i.e., 13.02.2021. The deponent was informed by
the authorised representative of the petitioners that the authorised
representative was in Ahmedabad and the petitioners would not
be able to obtain a signed copy and submit the same within the
prescribed time frame.
11.14 It is submitted that the petitioners no. 1 to 7, did not
submit the signed political mandate before 3:00 pm on
13.02.2021 and the same was submitted on 15.02.2021 (on the
date of scrutiny of forms) at 1:20 pm, along with a written
representation on behalf of the petitioners, requesting the
deponent to accept the political mandate of the petitioners. In this
regard, it is imperative to bring to the attention of the Hon'ble
Court that the scrutiny of the nomination forms was scheduled on
15.02.2021. For the purpose of scrutiny of forms, all the
candidates were requested to gather in a hall situated at the
office of the deponent. Thereafter, the process of scrutiny was
started. It is further submitted that an objection was also raised
on behalf of the members of the ruling political party against the
acceptance of the nomination forms of the petitioners.
11.15 During the process of scrutiny, some of the petitioners were
present and for some of the petitioners, their representatives,
were present. The scrutiny of forms was carried out seatwise,
meaning thereby, that the forms of all the candidates contesting
for a particular electoral division were scrutinised in one batch.
11.16 Pursuant to such scrutiny, a rojkam was prepared for
each electoral division, reflecting:
a) The names of the candidates for such division;
b) The signatures of the candidates or their representatives
present for such scrutiny;
c) Whether the nomination forms of the candidates are
accepted or rejected;
d) The reasons for rejection of nomination forms, recorded in
brief.
11.17 The entire purpose behind the rojkam was to immediately
intimate the candidates regarding the acceptance or rejection of
their candidature after giving them an opportunity of being heard
and the detailed and reasoned order for the rejection is issued
thereafter. The following tabular form reflects whether the
petitioners were present during the scrutiny or not:
Name of
representative who
Sr. Present
Name of Candidate was present on behalf
No. during
of the petitioner
scrutiny
during scrutiny
1. Sukeshbhai Meghjibhai Yes
Bavliya
2. Muliben Nagarbhai No Naagar bhai
Makwana- Petitioner No. 2 Makwana and
Rameshbhai Mer
3. Rajubhai Tejabhai Mer Yes No
4. Rekhaben Jagdishbhai No Jagdhishbhai Savani
Savani - Petitioner No. 4 and Rameshbhai Mer
5. Nareshbhai Gordhanbhai No Rameshbhai Mer
Bhil Petitioner No.5
6. Hirabhai Narshibhai Yes
7. Vanitaben Rameshbhai No Rameshbhai Mer
11.18 Thus, it is submitted that the petitioners and their
representatives were supplied with the document containing
general instructions at the time of supplying the nomination forms,
they were orally informed about the submission of the political
mandate in FormK & KH at the time of submission of the
nomination forms on the respective dates (videography in support
of the same) and thereafter, were again instructed to submit the
signed political mandate on 13.02.2021 and were given an
opportunity of being heard before the deponent passed the
impugned orders dated 15.02.2021 rejecting the nomination
forms.
11.19 It is submitted that the Botad District Panchayat has 20
seats, out of which 7 Seats pertain to Botad Taluka. It is
submitted that out of seven such seats, two seats have already
been declared uncontested i.e. Seat No. 8: Lakheni and Seat No.
9: Lathiad on 16.02.2021 after the withdrawal of nomination
forms. It is submitted that Rule 22(2) of the Rules of 1994,
mandates that if in any electoral division there is only one
contesting candidate, the candidate, so contesting shall be
declared by the returning officer to have been elected uncontested
after the last date of withdrawal is over."
12. Ms.Shah, thereafter, invited the attention of this Court to
the relevant averments made in the reply as regards the
presence of the cabinet rank Minister in the office premises of
the Returning Officer on 13th February 2021 as alleged by the
writapplicants. We quote the relevant averments thus :
"15.1 It is submitted that in paras 5.11, 5.16 and 5.17, the
petitioners have alleged malafides on part of the deponent
and have further alleged that the decision of the deponent of
rejecting the nomination forms was influenced by a Minister
of the ruling political party. In this regard, it is pertinent to
note that the contentions raised in the said paras are false,
baseless, unsubstantiated and are categorically and
vehemently denied. It is denied that Shri Saurabh Patel met
the deponent and was present at the office of the deponent.
It needs to be noted that the deponent was not even aware
of such visit of Shri Patel to Botad.
15.2 It is pertinent to note that Shri Patel did not visit the
office of the deponent or meet the deponent, much less, stay
there for atleast two hours. It is further denied that it was
pursuant to such meeting with Shri Patel that the
nominations of the petitioners were rejected. The deponent
would like to raise a strong and serious objection regarding
such contentions and allegations raised by the petitioners. I
once again reiterate my categorical denial to all the
averments contained in the said paras.
15.3 It is submitted that the said contentions raised in the
said paras are vague and unsubstantiated, devoid of any
details and the petitioners are put to strict proof regarding
such contentions. This is nothing but an unfortunate attempt
on part of the petitioners to malign Shri Patel as well as to
raise unfounded and bald allegations against the integrity
of the Returning Officer who is a ClassI officer of the
Government of Gujarat, without an iota of proof to support
their contentions. I humbly say and submit that such
attempt by the petitioners deserves to be deprecated and
with utmost responsibility, I say and submit that by raising
such contentions, the petitioners have stated falsehood on
oath and appropriate proceedings under law, be initiated
against the petitioners.
15.4 It is further submitted that raising unsubstantiated
and unfounded allegations of such a serious nature against
officials of the Government, is nothing but a tactic to seek
indulgence of the Hon'ble Court in a matter, which is
otherwise, squarely barred under the provisions of the
Constitution of India. It is humbly submitted that inclusion of
provocative but completely unsubstantiated, unverified and
unproven allegations in the petition is an attempt by the
petitioners to publicise the issue and to unnecessarily
politicise the same. At this juncture, it would not be out of
place to mention that the Hon'ble Supreme Court has in a
catena of judgments, deprecated such practice of raising
unfounded allegations against politicians as well as against
the integrity of Government officials.
15.5 I would further like to state and submit the following
in respect of the averments made in the said paras:
a) The allegations are vague, devoid of any particulars or
details and unsubstantiated.
b) The contentions need to be viewed in light of the fact
that the offices of both Election officers are located at a
distance of 30 kms and thus, raising a contention in
respect of both the Election officers, clearly indicates
that such contentions have been raised just for the
sake of it.
c) The office of the deponent has CCTV cameras and the
fact that Shri Patel did not visit the office of the
deponent can be clearly proved by production of the
video recordings. I undertake to produce such video
recordings, if and when called upon to do so.
d) The nature of the allegations and the lack of any proof
whatsoever, in support of such allegations, clearly
indicates that they have been made for the purpose of
publicising the dispute and the Hon'ble is humbly
requested to deprecate such practice.
15.6 It is most pertinent to note that the petitioners despite
having remained present either personally or through their
representatives, during the scrutiny of nomination forms, the
entire story of not being granted an opportunity of hearing
and further the interference by a Minister of the ruling party
has been spun by the petitioners in order to divert the
attention of the Hon'ble Court from their own conduct."
13. Ms.Shah would submit that she would adopt all other
submissions on law as canvassed by Mr.Joshi, the learned
senior counsel appearing for the State Election Commission.
14. Ms.Shah, while laying much stress on the importance of
the political mandate as a necessary appendix to the nomination
form, invited the attention of this Court to the 1994 Rules, the
Order of 2012 and the Hand Book of 2018. Relying on the same,
she invited the attention of this Court to the following averments
made in the affidavitinreply filed on behalf of the State Election
Commission. We quote the relevant averments thus :
"11.3 The Election symbol (reservation and allotment)
Order, 2012
a) In order to highlight the true importance of the political
mandate, the deponent craves leave of the Hon'ble Court to
refer to and rely upon the Election symbol (reservation and
allotment) Order, 2012 (hereinafter referred to as "the Order
of 2012"). It is pertinent to note that the Order of 2012, was
published on 08.02.2012, by the Respondent Commission in
exercise of the powers vested with it under Rule 11 of the
Rules of 1994. Such Order of 2012 has been issued after
due consultations with political parties and after taking their
suggestions into account. The said Order is largely based on
the symbols Allotment Order (1968) of the Election
Commission of India on the basis of which elections to State
Legislative Assemblies and the House of Peoples are
conducted throughout the country.
b) The Order of 2012, states that the Election
Commission shall by notification specify the symbols that
may be chosen by candidates at election in the electoral
divisions and the restrictions to which such choice will be
subject.
c) Considering the relevance of such political mandate as
a necessary appendix to the nomination form, a specific
provision has been made for the submission of such a
political mandate under Clause No. 15 of the Order of 2012,
which clearly states that the political mandate consisting of
FormsK and KH need to be submitted to the Returning
Officer and to the Secretary of the State Election
Commission, before 3:00 pm on the last date of submission
of the nomination forms. Thus, while the political mandate
need not accompany the nomination form, the same needs
to be submitted to the Returning Officer in order to constitute
valid candidature.
d) I crave leave of the Hon'ble Court to highlight Clause
No. 17(3) of the Order of 2012, which clearly states that if
the nomination form is submitted but the political mandate
in FormsK & KH are not submitted by a candidate then the
candidate can submit his candidature, if the prescribed
number of proposers and seconders subscribe to his
nomination form. This clearly signifies that a candidate has
another option to avail if he is unable to submit the political
mandate.
e) At this juncture, it also needs to be brought to the
attention of the Hon'ble Court, that the FormsK and KH,
both contain in their stipulated formats, a specific Note at
the bottom of the Form, stating that the forms need to be
submitted to the concerned Returning Officer and the
Secretary of the State Election Commission, before 3:00 pm
on the last date of submission of the nomination forms.
11.4 In furtherance to the above, I crave leave to draw
attention of the Hon'ble Court to Rule 12 of the Rules of
1994, which provides for the presentation of nomination
papers and requirement of valid nomination. Proviso to the
Rule 12(2) states that if a candidate is not recognised by a
political party then such candidate shall not be deemed to
be duly nominated unless the nomination paper is
subscribed by one proposer and none seconders, being
voters of the electoral division. Thus, this would mean that
in order to be associated with a political party, recognition
with such political party is necessary and in case the party
is not affiliated to a political party, then such candidate
must fulfill the requirements as set out in the proviso to Rule
12(2) of the Rules of 1994.
11.5 Another aspect that merits consideration by the
Hon'ble Court is that the State Election Commission has also
issued a Handbook for Returning Officers in the year 2018.
Such Handbook contains specific instructions for Returning
Officers for the various stages of elections. Chapter 10 of
such Handbook pertains to scrutiny of nomination forms.
The provisions of such Chapter reiterate the powers
bestowed upon the Returning Officer as per Rule 15(2) to
scrutinise the forms of his own motion, in addition to any
objections that may be raised
11.6 A conspectus of the aforementioned provisions (the
1994 Rules, the Order of 2012 and the Handbook of 2018)
would indicate the importance of the political mandate and
furthermore, the relevance of submitting the same, within
the timeframe as prescribed. It is most humbly submitted
the political mandate consists of FormK and FormKH.
However, without a duly signed FormK in the prescribed
format, the FormKH would hold no value. Both FormsK
and KH, together form the political mandate. This leads to
the inevitable conclusion, that submission of FormK which
has not been duly signed by the authorised representative
within the time frame, would tantamount to nonsubmission
of the mandate itself. This would clearly indicate that the
same is a defect of a substantial nature."
15. Ms.Shah seeks to place reliance on the following decisions :
1. Jayaben Vijaybhai Vasoya vs. State of Gujarat and others
(SCA No.20941 of 2016, decided on 26.12.2016);
2. Chandrikaben Narsinhbhai Vaghela vs. State Election
Commissioner and others (SCA No.1539 of 2013 and allied
petitions, decided on 12.02.2013);
3. Thakore Shanabhai Gedalbhai vs. State Election
Commission and others (SCA No.20859 of 2005 and allied
petitions, decided on 18.10.2005).
16. In such circumstances referred to above, Ms.Shah prays
that there being no merit in the present writapplication, the
same be rejected.
ANALYSIS :
17. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the following
questions fall for our consideration :
(1) Whether the writapplication is maintainable against
an order rejecting the nomination form for want of valid
FormK in accordance with the Gujarat Panchayats
Elections Rules, 1994 ?
(2) Whether the failure to fill up FormK in accordance
with the Rules 1994 could be termed as a technical defect
or the same would be one of a substantial character
leaving the Returning Officer with no other option but to
reject such nomination form without any summary
inquiry ?
(3) Whether the case on hand is covered by the
Explanation to SubRule (4) of Rule 15 of the Rules 194 ?
4) Whether any case of malafide or political interference
has been made out by the writapplicants in so far as the
rejection of their nomination forms is concerned ?
ISSUE OF MAINTAINABILITY :
18. Mr.Mihir Joshi, the learned senior counsel appearing for
the State Election Commission, as well as Ms.Manisha
Lavkumar Shah, the learned Government Pleader, would submit
that the present writapplication questioning the legality and
validity of the order passed by the Returning Officer rejecting the
nomination form of the writapplicants is not maintainable.
Mr.Joshi would submit that the only remedy available to the
writapplicants is to file an election petition before the Election
Tribunal. Mr.Joshi would submit that in light of the provisions
contained in Article 243O(b) of the Constitution of India which
provides that 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, it is not permissible for
this Court to interfere with the acceptance or rejection of the
nomination papers for the ensuing panchayat election. He would
submit that the election process commences from the issuance
of the calender of events till the results of the elections are
declared. According to Mr.Joshi, as the acceptance or rejection of
the nomination is one of the stages in the process of election, the
validity of it can only be challenged an election petition and not
under Article 226 of the Constitution of India.
19. In the aforesaid context, Mr.Joshi, the learned senior
counsel appearing for the State Election Commission, seeks to
rely upon the decision of the Supreme Court in the case of
Manda Jaganath vs. K.S.Rathnam and others, reported in
(2004)7 SCC 492. Mr.Joshi seeks to rely on the following
observations :
"9. Dr. Rajeev Dhawan, learned senior counsel appearing
for the respondents before us who was the writ petitioner
before the High Court, however, supported the judgment of
the High Court stating that the bar found in Article 329(b) of
the Constitution is only in regard to the defects which are
not of substantial nature and not a bar to correct errors
arising out of irregularities and omissions which have no
material bearing on the election or rights of parties. He
placed strong reliance on the proviso to Rule 4 of the
Conduct of Elections Rules, 1961. He also submitted that
the defects pointed out by the Returning Officer were of a
very trivial nature and from a complete reading of the
nomination papers filed in different forms, it was clear that
the first respondent was a candidate proposed by the
Telangana Rashtra Samithi and in such circumstances an
omission to fill up clauses 2 to 7 in Form B can never be
treated as a fatal omission. He also contended that there
being no substantial defect and there being no other
nomination paper filed on behalf of that political party, the
High Court was justified in rectifying that error of the
Returning Officer but for which his client would have
suffered great hardship and might have had to suffer a
prolonged legal battle at a subsequent stage. He also
submitted that since the appellant herein was not a
candidate claiming either as a nominee of the Telengana
Rashtra Samithi or claiming the official symbol of the said
party he would not be in any manner prejudiced by the
order of the High Court which would only further the interest
of justice in facilitating the ongoing election process which is
the main object of Article 329 of the Constitution of India.
10. He also relied on certain passages found in Mohinder
Singh Gill's case (supra) as also Ponnuswami's case (supra)
to support his contention. Learned counsel also placed
strong reliance on section 36 of the Representation of the
People Act as also clause 30 of the Election Symbols
(Reservation and Allotment) Order, 1968 to show that any
error in Form B filed in regard to the allotment of the symbol
would not be a defect of substantial nature.
11. It is an admitted fact that so far as the Elections to
Parliament from Constituency No.28 Nagarkurnool (SC)
Parliamentary Constituency in Andhra Pradesh is
concerned, the process of election had already started not
only by issuance of the notification by the President of India
but also by issuance of a notification fixing the calendar of
events by the Election Commission. It is only pursuant to
said notification that the first respondent filed his
nomination before the Returning Officer on the last date of
filing of nominations. It is an admitted fact that in Form A
filed by the appellant, he had asked for the symbol of a car
on the ground that he is a candidate proposed by the
Telengana Rashtra Samithi. His candidature has also been
properly proposed and seconded as a candidate for the
election to the House of People from Nagarkurnool (28)
Parliamentary Constituency, but in Form B which is also a
statutory form required to be filed by the first respondent for
claiming a reserved symbol of a particular party at Part III in
column (b)(ii) of the said form the candidate is required to
give the particulars of the political party represented by him.
Though in this column the respondent has stated that he is
a candidate set up by the Telangana Rashtra Samithi party
which is a registered unrecognised political party, alternate
printed words that he is contesting this election as an
independent candidate is also retained. This column
requires the candidate to strike out what is not applicable
therein but the first respondent has failed to strike out the
part that he is contesting that election as an independent
candidate thus giving room for a doubt whether really he
was a candidate representing Telengana Rashtra Samithi
political party or he is contesting the election as an
independent candidate. The more important and more
glaring error that was noticed by the Returning Officer was
the lack of particulars in columns 2 to 7 of the said form
which is the requisite notice required to be given by the
political party setting up the candidate in proof of the fact
that the candidate named therein has been set up by and
entitled to the reserved symbol of that party. From a reading
of the various clauses of Form B it is clear that only that
person whose name and other particulars are furnished in
columns 2 to 4 in the said form, can be treated as a
representative or a candidate proposed by the said political
party. As noticed by the Returning Officer we also see that
except column 1 which mentions the name of the
Constituency no other column which requires name of the
approved candidate, name of father/mother/husband of the
approved candidate, postal address of the approved
candidate has been filled up to indicate that it is the first
respondent who is the official candidate of that party and
entitled to the symbol. On the contrary these columns are
struck off as if this Form B was not given to any one. Clause
2 of the said form requires a declaration to be made by the
authorised person as to whom this Form B is being given.
Even in this column the name of the first respondent is not
mentioned. Clause 3 of the said form also requires a
certificate that the candidate whose name is mentioned
above is a member of that political party and his name is
duly borne on the rolls of that party. None of these
information is provided in the said clause of Form B.
12. In our opinion, whether the Returning Officer is
justified in rejecting this Form B submitted by the first
respondent herein or not, is not a matter for the High Court
to decide in the exercise of its writ jurisdiction. This issue
should be agitated by an aggrieved party in an election
petition only.
13. It is to be seen that under Article 329(b) of the
Constitution of India there is a specific prohibition against
any challenge to an election either to the Houses of
Parliament or to the Houses of Legislature of the State
except by an election petition presented to such authority
and in such manner as may be provided for in a law made
by the appropriate legislature. The parliament has by
enacting the Representation of the People Act, 1951
provided for such a forum for questioning such elections
hence, under Article 329(b) no forum other than such forum
constituted under the R.P.Act can entertain a complaint
against any election.
14. The word 'election' has been judicially defined by
various authorities of this Court to mean any and every act
taken by the competent authority after the publication of the
election notification.
15. In Ponnuswami (supra) this Court held :
"The law of elections in India does not contemplate
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 Art.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."
16. The above view of this Court in Ponnuswami's case
has been quoted with approval by the subsequent judgment
in M.S. Gill (supra) wherein this Court after quoting the
passages from said judgment in Ponnuswami's case held
that there is a nonobstante clause in Article 329 and,
therefore, Article 226 stands pushed out where the dispute
takes the form of calling in question an election, except in
special situations pointed out but left unexplored in
Ponnuswami's case. It is while considering the above
unexplored situations in Ponnuswami (supra) in M.S. Gill's
case (supra) this Court held thus :
"This dilemma does not arise in the wider view we
take of Section 100(1)(d)(iv) of the Act. Sri Rao's attack
on the order impugned is in substance based on
alleged noncompliance with a provision of the
Constitution viz., Article 324 but is neatly covered by
the widelyworded, residual catchall clause of Section
100. Knowing the supreme significance of speedy
elections in our system the framers of the Constitution
have, by implication postponed all election disputes to
election petitions and tribunals. In harmony with this
scheme Section 100 of the Act has been designedly
drafted to embrace all conceivable infirmities which
may be urged. To make the project foolproof Section
100(1)(d)(iv) has been added to absolve everything left
over. The Court has in earlier rulings pointed out that
Section 100 is exhaustive of all grievances regarding
an election."
17. In the very same paragraph this Court, however,
demarcated an area which is available for interference by
the High Court and the same is explained as follows:
"But what is banned is not anything whatsoever done
or directed by the Commissioner but everything he
does or directs in furtherance of the election, not
contrarywise. For example, after the President notifies
the nation on the holding of elections under Section 15
and the Commissioner publishes the calendar for the
poll under Section 30, if the latter orders Returning
Officers to accept only one nomination or only those
which come from one party as distinguished from
other parties or independents, is that order immune
from immediate attack. We think not. Because the
Commissioner is preventing an election, not promoting
it and the Court's review of that order will facilitate the
flow, not stop the stream. Election, wide or narrow be
its connotation, means choice from a possible plurality,
monolithic politics not being our genius or reality, and
if that concept is crippled by the Commissioner's act,
he holds no election at all."
18. Of course, what is stated by this Court herein above is
not exhaustive of a Returning Officer's possible erroneous
actions which are amenable to correction in the writ
jurisdiction of the courts. But the fact remains such errors
should have the effect of interfering in the free flow of the
scheduled election or hinder the progress of the election
which is the paramount consideration. If by an erroneous
order conduct of the election is not hindered then the courts
under Article 226 of the Constitution should not interfere
with the orders of the Returning Officers remedy for which
lies in an election petition only.
19. In Election Commission of India v. Shivaji (supra) this
Court while considering a challenge to the election
notification which included certain Zilla Parishads within a
notified constituency, held following the judgment in
Ponnuswami (supra) that even if there was any ground
relating to the non compliance with the provisions of the Act
and the Constitution on which the validity of any election
process could be questioned, the person interested in
questioning the election has to wait till the election is over
and institute a petition in accordance with Section 81 of the
Act calling in question the election of the successful
candidate.
20. Learned counsel for the writ petitioner before the High
Court had relied upon a judgment of this Court in S.T.
Muthusami v. K. Natarajan & Ors. (1988 1 SCC 572)
wherein this Court had held following the judgment in
Ponnuswami's case (supra) that entertaining of a writ
petition by the High Court under Article 226 of the
Constitution cannot be supported and consequently it set
aside the judgment of the Division Bench of the High Court
and dismissed the writ petition filed in the High Court. In
that case the question involved was a dispute between two
candidates claiming the official symbol of a political party.
This judgment came to be distinguished by the High Court
on the basis of facts though the law laid down there was
squarely applicable against the maintainability of the writ
petition.
21. Learned senior counsel for the respondent candidate
contended that case of the first respondent before the High
Court came within the exceptions noted by this Court in M.S.
Gill's case (supra) which permits filing of a writ petition
under Article 226 of the Constitution in certain exceptional
cases. He contended that the facts in this case also show
that but for the intervention of the High Court the progress in
the election would have been stalled. With due respect to
learned counsel we do not agree with this argument
because by not allotting a symbol claimed by the first
respondent the Returning Officer has not stalled or stopped
the progress of the election. Said respondent has been
treated as an independent candidate and he is permitted to
contest with a symbol assigned to him as an independent
candidate, and consequently there is no question of stalling
the election. His grievance as to such nonallotment of the
symbol will have to be agitated in an election petition (if
need be) as held in S.T.Muthuswami (supra)."
20. In the above referred decision of the Supreme Court, the
observations made in paragraph 18 assume some importance.
21. In Narain Bhaskar Khare vs. Election Commission of
India, reported in AIR 1957 SC 694, it has been stated that :
"The well recognized principle of election law, Indian and
English, is that election should not be held up and that the
person aggrieved should not be permitted to ventilate his
individual interest in derogation to the general interest of the
people, which requires that elections should be gone through
according to the time schedule."
22. Ordinarily, the High Court should not, therefore, stay an
election or pass any order which will result in the election being
postponed. Where, however, the matter is brought before the
High Court sufficiently in advance, where the matter can be
heard and disposed of before the polling is due to take place and
where there is an error apparent on the face of the record, we see
no reason why the High Court should not correct that error. For
instance, if a Returning Officer rejects a nomination on wholly
inadequate grounds, it would save public time and money as
well as expenses, inconvenience and hardships to the parties if
the Returning Officer's action is corrected before the election
takes place. In our opinion, therefore, the relief should not be
declined merely because the writapplicant can pursue another
remedy by filing an election petition after the election is held.
Each case should be considered on its own facts and where,
without staying or postponing the election it is possible to put
the matters right before the election took place, it may, in
appropriate cases, be desirable to do so. The powers of this
Court under Article 226 of the Constitution of India are very
wide and it is open to this Court to setaside, in appropriate
cases, the order of an officer, which is contrary to or not, in
accordance with law. It is hardly necessary to point out that the
High Court's powers under Article 226 of the Constitution is not
restricted to the writs specifically referred to in this Article, but
the High Court has also power to issue to any person or
authority directions, orders or other writs for the enforcement of
any of the fundamental rights and for any other purpose.
23. The question, whether the power should be exercised in
any particular case, must be decided having regard to the facts
and circumstances of that case.
24. In view of the aforesaid, we are of the view that we should
not outright reject this writapplication holding that the same is
not maintainable in law. In the facts and circumstances of this
case, and more particularly having regard to few vital issues
relating to the election law been raised, we would like to look
into such issues and render our findings so that the position of
law is settled.
25. Having taken the view that the writapplication is
maintainable, we now proceed to consider the other issues on
merits.
26. Before adverting to the other legal issues, we must first
look into few relevant provisions of law.
27. The elections to Panchayats are governed by the Gujarat
Panchayats Elections Rules, 1994. PartIV of the Rules provides
for the procedure regarding elections. For the purpose of
deciding the present litigation, Rules 11, 12 and 15 are relevant.
We quote the relevant rules thus :
"11. Symbols of election in the electoral divisions. (1)
The Election Commission shall by notification in the Official
Gazette specify the symbols that may be chosen by
candidates at election in the electoral divisions and the
restrictions to which such choice shall be subject.
(2) Subject to any general or special directions issued by the
Election Commission under sub rule (3) where at any such
election, more nomination papers than one are delivered by
or on behalf of a candidate, the declaration as to symbols
made in the nomination paper first delivered, and no other
declaration as to symbols, shall be taken into consideration
under rule 18 even if that nomination paper has been
rejected.
(3) At all elections where a poll becomes necessary, the
returning officer shall consider the choice of symbols
expressed by the contesting candidates in their nomination
papers and shall subject to any general or special directions
issued by the Election Commission on this behalf.
(a) allot a different symbols to each contesting candidate in
conformity, as far as practicable with his/her choice, and
(b) If more contesting candidates than one have indicated
their preference for the same symbol, decide by lot, to which
of such candidates the symbol shall be allotted.
(4) The allotment by the returning officer of any symbol to a
candidate shall, unless it is inconsistent with the directions
issued by the Election Commission, be final and where the
allotment is so inconsistent, the Election Commission shall
revise the same in such manner as it may think fit.
(5) Every candidate or his election agent shall be informed
forthwith of the symbol allotted to the candidate and shall
be supplied with a specimen thereof by the returning officer.
12. Presentation of nomination papers and
requirement for valid nomination. (1) A nomination
paper in Form 4 shall be supplied by the returning officer to
any person asking for the same.
(2) On or before the date appointed for making nominations
under clause (a) of subrule (2) of rule 9, each candidate
shall either in person or by his proposer, between the hours
of eleven O'clock in the forenoon and three O'clock in the
afternoon deliver to the returning officer at the place
specified in this behalf in the notice issued under rule 10, a
nomination paper completed in the form specified in subrule
(1) and signed by the candidate and by voter of the electoral
division as proposed :
Provided further that no paper purporting to be a nomination
paper of a candidate which is
(a) delivered to the returning officer before eleven O'clock in
the forenoon or after three O'clock in the afternoon or on any
day on which a nomination paper may be delivered in
accordance with these rules; or
(b) delivered by a person other than the candidate or his
proposer; or
(c) received by returning officer by post or in any other
manner; shall be treated by the returning officer as a
nomination paper and any such paper shall be rejected as
soon as it is received by the returning officer and shall not
be considered at the time of scrutiny,
Provided also that candidate not set up by the recognised
political party for an election to any electoral division of
taluka or a district panchayat shall not be deemed to be
duly nominated candidate for election an electoral division
unless the nomination paper is subscribed by one proposer
and nine seconders, being voters of the electoral division.
(3) On the presentation of a nomination paper, the returning
officer shall satisfy himself that the names and numbers in
the list of voters of the candidate, his proposer and
seconders as entered in the nomination paper are the same
as those entered in the list of voters, and if not, invite the
attention of the candidate or the proposer or the seconder as
the case may be, to his effect;
Provided that the returning officer shall permit any clerical
or technical error in the nomination paper in regarded to the
said names or numbers to be corrected in order to bring
them in conformity with the corresponding entries in the list
of voters.
(4) Where a candidate is a voter in a different electoral
division, a copy of the list of that division or of the relevant
part thereof or a certified copy of the relevant entries in such
list shall, unless it has been filed alongwith the nomination
paper, be produced before the returning officer at the time of
the scrutiny.
(5) Nothing in this rule shall prevent any candidate from
being nominated by more than one nomination paper;
provided that not more than four nomination papers shall be
presented by or on behalf of any candidate or accepted by
the returning officer for election in the same electoral
division.
(5A) A candidate shall be prohibited from filing nomination
paper for election more than two electoral divisions of the
panchayat.
(6) No person shall sign as a proposer or seconder any
nomination paper or papers of more than one candidate at
the same election in an electoral division and if he does so,
then, of all the nomination papers signed by him as
proposer or seconder, only the nomination paper or papers
of the candidate which or one of which is delivered first to
the returning officer shall be accepted and the nomination
paper or papers of all other candidates shall be rejected as
soon as they are received by the returning officer and shall
not be given any serial number and shall not be taken for
scrutiny.
(7) The candidate or his proposer, as the case may be, shall,
at the time of delivering to the returning officer the
nomination paper also deliver to him an affidavit sworn by
the candidate before a Magistrate of the first class or a
Notary in FORM4.
15. Scrutiny of nomination papers. One of the date
fixed for the scrutiny of nomination under clause (b) of sub
rule (2) of rule 9, the candidates, their election agents one
proposer, of each candidate and one other person duly
authorised in writing by each candidate, but no other
person, may stand 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 other than
those which have been rejected by the returning officer
under the proviso to sub rule (2) of under sub rule (6) of rule
12.
(2) The returning officer shall then examine the nomination
papers and shall decide all objections which may be made
to any nomination and may, either on such objection or on
his own motion after such summary inquiry if any, as he
thinks necessary, reject any nomination paper on any of the
following grounds, namely,
(a) on the date fixed for scrutiny of nominations the
candidate is either not qualified or disqualified for being
chosen to fill the seat under the Act or any other law for the
time being in force; or
(b) that the proposer is disqualified from subscribing a
nomination paper; or
(c) that there has been a failure to comply with any of the
provisions of rules 12 or 13; or
(d) that the candidate or the proposer or any seconder is not
identical with the person whose electoral number is given in
the nomination paper as number of such candidate or
proposer or a seconder, as the case may be; or
(e) that the signature of the candidate or any proposer or
any seconder on the nomination paper is not genuine or has
been obtained by fraud.
(3) Nothing contained in clause (b), (c) or (d) of subrule (2)
shall be deemed to authorise the rejection of the nomination
of any candidate on the ground of any irregularity in respect
of a nomination paper, if the candidate has been duly
nominated by means of another nomination paper in respect
of which no irregularity has been committed.
4) The returning officer shall not reject any nomination paper
on the ground of any technical defect which is not of a
substantial character,
Explanation : For the purposes of this subrule a failure to
complete, or a defect in completing the declaration, as to
symbols in nomination paper in Form 4 shall not be deemed
to be defect of a substantial character.
5) The returning officer shall hold the scrutiny on the
appointed date in this behalf under rule 9 and shall not
allow any adjournment of the proceedings except when such
proceedings are interrupted or obstructed by riot or violence
or by causes beyond his control;
Provided that in case an objection is raised by the returning
officer or is made by any other person the candidate
concerned may be allowed time to rebut it not later than the
next day mediately following the date fixed for scrutiny and
the returning officer shall record his decision on the date to
which the proceedings have been adjourned.
(6) The returning officer shall endorse on each nomination
paper his decision accepting or rejecting the same and, if the
nomination paper is rejected shall record in writing a brief
statement of his reasons for such rejection and supply a
certified copy of the order to the candidate as soon as
possible after the scrutiny is over, even in the absence of an
application from him and without any cost.
(7) For the purposes of this rule, the production of a certified
copy of an entry made in the list of voters for the time being
in force of any electoral division shall be conclusive evidence
of the right of any voter named in that entry to contest the
election or to subscribe to a nomination paper, as the case
may be, unless it is provided that the candidate or, the case
may be, the proposer is disqualified, within the meaning of
subsection (2) of section 28 of the Act, to contest the
elections.
(8) The decision of the returning officer regarding
acceptance or rejection of the nomination paper shall be
final."
WHAT IS FORMK AND FORMKH & ITS IMPORTANCE :
28. FormK reads as under :
"FORM K
Communication with regard to Authorised Persons to intimate names of Candidates
To,
The Returning Officer
...............Ward/Electoral Division No./Name................... and Designation ...................
The Secretary,
State Election Commission,
Block No. 9, 6th Floor,
New Sachivalaya,
Gandhinagar: 382 010
Subject : Regarding Authorisation of persons to intimate names of candidates for
General/by/midterm elections to...............for the year..........month...........
Sir,
In pursuance to order of State Election Commission bearing no. ___________________, dated,
_______________, party is a SEC Registered National/State /registered unrecognized party. I hereby
authorise the following person(s) to intimate the names of the Authorised candidates/dummy candidates
proposed to be set up by the party for the election in _______________ward/electoral division cited above.
Name of person Name of the office held Name and number of the Name and number of the ward/
Authorized to by the authorized ward/electoral division electoral division for which the
communicate the person person is authorized As per
same Annex1 (if any)
The specimen signatures of the above mentioned person(s) so authorised are given below :
Sign of the authorized person Sign of the President/vice president/Minister
Full name of the person signing
Place..............
Date............... (Seal of the Party)
*score off if not applicable.
1. This must be delivered to the Returning Officer and the Secretary, SEC, Gandhinagar not later
than 3 p.m. on the last date for making nominations. No form transmitted by fax shall be
accepted.
2. Form must be signed in ink using a pen/ballpoint pen by the president/minister of the party as
well as the authorized person. No facsimile signature or signatures by means of rubber stamp,
etc., of any office bearer shall be accepted.
29. FormKH reads as under :
"FORM KH
Notice as to names of candidates set up by the political party
To,The Returning Officer
...............Ward/Electoral Division No./Name................... and Designation ...................
Subject : Regarding intimation of the names of candidates set up by the party with the signature
of the authorised person for General/by/midterm elections to...............for the
year..........month...........
Sir,
Ward/ Type of the Name of the Father's/ Postal Name of Father's/ Postal
electoral seat approved Husband's address of the Husband's address of
division candidate name of the the dummy name of the the dummy
name and approved approved candidate dummy candidate.
number candidate candidate candidate
In pursuance to order of State Election Commission bearing no. ___________________, dated ____________,
_______________, the following candidates have been set up by our party for the below mentioned
wards/electoral division as Approved/dummy candidates for the election cited above.
*2. The notice in the form KH given earlier in favour of Shri/Smt/Sushri____________________ as party's
approved candidate and Shri/Smt/Sushri____________________ as party's dummy candidate is hereby
rescinded.
3. It is certified that each of the candidates whose name is mentioned above is a member of this political
party and his name is duly borne on the rolls of members of this party.
Yours faithfully,
Sign of the authorized person
(Name of the authorized person)
Place..............
Date............... (Seal of the Party)
*score off if not applicable.
1. This must be delivered to the Returning Officer not later than 3 p.m. on the last date for making
nominations. No form transmitted by fax shall be accepted.
2. Form must be signed in ink using a pen/ballpoint pen by the president/minister of the party as
well as the authorized person. No facsimile signature or signatures by means of rubber stamp,
etc., of any office bearer shall be accepted.
3. Part2 of the form must be scored off, if not applicable, or must be properly filled, if applicable."
30. At this stage, it would also be pertinent to note that a
candidate proposing to contest the election is required to file
his/her nomination paper in Form No.4. A copy of the blank
Form No.4 has been annexed with the affidavitinreply filed by
the Returning Officer. Form No.4 consists of nine parts. The nine
parts are as under :
1. Part I is the declaration by the Proposer;
2. Part II is required to be filled when a candidate is not set
up by a recognised political party and consists of the
signatures by the proposer/seconders;
3. Part III is to be filled by the candidate and contains a
specific declaration regarding the political party which has
set up such candidate as well as regarding the symbol
reserved for such party as also a declaration by the
independent candidate and also other details such as
whether the candidate is a member of Scheduled Castes,
Tribe or Socially and Educationally Backward Classes,
details such as age, declaration regarding qualification,
etc.;
4. Part IV is required to be filled by the Returning Officer and
consists of details such as serial number of nomination
paper, details regarding delivery of nomination paper to the
returning officer, etc.;
5. Part V consists of declaration by the Returning officer
regarding the decision of the Returning Officer of accepting
or rejecting the nomination paper;
6. Part VI is required to be filled by the Returning Officer and
is the receipt for the nomination paper and notice of
scrutiny;
7. Part VII is required to be filled by the candidate wherein
he/she is required to provide details of conviction of any
criminal offence;
8. Part VIII is required to be filled by the candidate where
he/she is required to provide details about whether the
candidate has been accused of any offence punishable with
imprisonment of two or more years in which a charge has
been framed by the court of the competent jurisdiction,
etc.;
9. Part IX is required to be filled by the candidate where
he/she is required to provide details about movable assets
and immovable assets, owned by the candidate, his/her
spouse and dependents as well as details regarding the
educational qualifications.
31. We also take notice of the fact that the information as
furnished by the candidate in PartVI, VIII and IX should be
supported by an affidavit so that the Returning Officer can
upload such information on the website of the State Election
Commission on the date of submission of the nomination form
along with the other relevant details, such as, the socio
economic condition of the candidate (in a prescribed format), etc.
Thus, the Rules of 1994 draw a clear distinction between the
persons contesting the election on the 'ticket' issued by a
political party and a candidate not affiliated to any political party
and contesting the election as an independent candidate. It goes
without saying that if a candidate intends to contest the election
as a candidate of a particular political party, then he/she is
obliged to make such a declaration in the nomination form. The
recognition by a political party is evidenced in the political
mandate. The political mandate assumes great importance in
such circumstances, more particularly, having regard to the
Rules of 1994. We have already quoted FormK and FormKH
above. FormK and FormKH are two forms which talk about the
political mandate. FormK pertains to the authorizaation issued
by the Party President of a political party in favour of the
person(s) to grant the political mandate in favour of a contesting
candidate, whereas FormKH is the grant of the mandate in
favour of a contesting candidate. FormsK and KH respectively
constitute a valid political mandate issued in favour of a
particular candidate to contest the election. It is also pertinent to
note that rule 12(2) of the Rules 1994 prescribes a statutory time
limit for filing the nomination forms, i.e. between 11:00 a.m. and
3:00 p.m. on the date appointed for making the nominations.
32. We also take note of the Election Symbol (Reservation and
Allotment) Order, 2012, published on 8 th February 2012 by the
Commission in exercise of its powers vested in it under rule 11
of the Rules 1994 which states that the Election Commission
shall, by notification, specify the symbol that may be chosen by
a candidate at election in the electoral division.
33. Considering the relevance and importance of the political
mandate as a necessary appendix to the nomination form, a
specific provision has been made for the submission of such a
political mandate under clause 15 of the Order of 2012 which
clearly stipulates that the political mandate consisting of Forms
K and KH need to be submitted to the Returning Officer and to
the Secretary of the State Election Commission before 3:00 p.m.
on the last date of submission of the nomination forms. Atleast
one thing is clear that although the political mandate need not
be annexed or attached to the nomination form, yet the same
needs to be submitted to the Returning Officer in order to
constitute a valid candidature.
34. It goes without saying that without a duly signed FormK
in the prescribed format, the FormKH would also be of no
consequence or value. The FormsK and KH together form a valid
political mandate. It is not in dispute that FormK in the case on
hand had not been signed by the authorized representative
within the stipulated statutory time, and in such circumstances,
in our opinion, it could be said that there was no valid
candidature. In other words, the nomination forms of all the
writapplicants were liable to be rejected as they proposed to
contest the elections as candidates of the Indian National
Congress party.
35. Essentially, we need to consider first, whether an invalid
FormK could be said to be a technical defect not of a substantial
character so that the Returning Officer cannot reject any
nomination paper on such ground, and secondly, whether a
valid FormK could be accepted by the Returning Officer on the
date of scrutiny of the nomination forms.
36. We are of the view that an invalid FormK cannot be
termed as a technical defect, but is one of a substantial
character. It is true that not every defect warrants the rejection
of a nomination paper. The defect must be of a substantial
character. There can be no hard and fast rule to find out,
whether any particular defect is or is not of a substantial
character. However, we are sure of one thing, that an invalid
FormK (not containing the signatures of the authorized
representatives of a political party) is an invalid FormK, and
such a defect would definitely be one of a substantial character.
37. A lot was argued by the learned counsel appearing for the
writapplicants that the objection as regards the invalid FormsK
and KH was raised by the candidates of the rival political party,
and in such circumstances, it was obligatory on the part of the
Returning Officer to conduct a summary inquiry in that regard
and permit the writapplicants to participate in such summary
inquiry and make good their case in whatever manner they
would deem fit.
38. We are afraid, we are not in a position to accept such
broad proposition as sought to be canvassed on behalf of the
writapplicants. If FormK has not been signed by the authorized
representative of a political party, then it could be said that the
form is not complete or there is a substantial defect in the same.
There is no question in such circumstances to conduct any
summary inquiry.
39. What is a summary inquiry within the meaning of rule
15(2) of the Rules 1994 ? We may give one simple illustration.
As per Section 30(kk) of the Act 1993, a person is not qualified to
be a member of a panchayat if he or she is not having a toilet at
his/her place of residence. Take a case that such objection is
raised by any other candidate in the fray or by the Returning
Officer on his own motion. A candidate against whom it is
alleged that he or she does not have a toilet may be in a position
to clarify or point out to the Returning Officer that in fact there
is a toilet and it can be inquired by the Returning Officer. For
such limited purpose, it would be within the power and
discretion of the Returning Officer to conduct a summary inquiry
and get it ascertained, whether there is any substance in the
allegations levelled by the rival candidates that a particular
candidate does not have a toilet at his/her place of residence.
Summary inquiries, at the end of the Returning Officer, are for
such purpose. Once the Returning Officer takes the FormsK
and KH in his hands and takes cognizance of the fact that the
FormK does not contain the signature of the authorized
representative of a political party, that is the end of the matter.
What summary inquiry he is expected to carry out or conduct in
such circumstances ? At the most, the Returning Officer may
bring this fact to the notice of the candidate concerned and may
give him an opportunity to produce a valid FormK duly signed
by the authorized representative of a political party before 3:00
p.m., i.e. the statutory time period prescribed under the Rules.
In the case on hand, the writapplicants proposed to produce the
FormK duly signed by the authorized representative on the date
of scrutiny. It is not in dispute that the writapplicants were not
in a position to produce the valid FormK on the last date of the
filing of the nomination forms, i.e. 13 th February 2021 before
3:00 p.m. In our opinion, the Returning Officer has no
jurisdiction or power to accept a valid FormK on the date of
scrutiny.
40. In taking the aforesaid view, we are fortified by a direct
decision of the Supreme Court in the case of Brijendralal Gupta
and another vs. Jwalaprasad and others, reported in AIR 1960
1049, wherein the Supreme Court observed as under :
"On the other hand the dictionary meaning of the word
"defect" is "lack or absence of something essential to
completeness", and in that sense omission to specify the age
call and would be treated as a defect under s.36(4). Defect
also means "a flaw or a fault or an imperfection"; but
whether or not it includes an omission must necessarily
depend upon the context in which the word is used. In our
opinion, having regard to the context it would be
unreasonable to hold that the word "defect" under s.36(4)
excludes all cases of omission to specify the details
prescribed by the statute in the nomination paper. We must
accordingly reject the appellants' argument that the
omission in question is not a defect under s.36(4). The next
question which we must consider is whether in the case of
such an omission it was obligatory on the returning officer to
hold an enquiry under s.36(2) of the Act. The High Court has
held that the returning officer ought to have held an enquiry
under s. 36(2)(a) and satisfied himself whether or not
respondent 5 was eligible to stand for the election. In our
opinion the High Court was in error in coming to this
conclusion. If the nomination paper of respondent 5 did not
comply with the provisions of s.33 the case fell squarely
under s.36(2)(b) and the only question which can arise in
such a case is whether or not the defect arising from the
failure to comply with the provisions of s.33 is of a
substantial character or not. If the defect is not of a
substantial character the returning officer shall not reject the
nomination paper on the ground of the said defect; if, on the
other hand, the defect is of a substantial character the
returning officer has to reject the nomination paper on the
ground of the said defect, That is the effect of the provisions
of s.36(2)(b) and (4) read together. An enquiry which is
necessary under s.36(2)(a) may and can be held for instance
in cases where the nomination paper shows the age of the
candidate as above 25, but an objection has been raised
that in fact he is below 25 and as such incompetent to stand
for election under Art.173 of the Constitution; in other
words, the impugned nomination has complied with the
provisions of s.33 and as such does not fall under s.36(2)(b)
at all, nevertheless the validity of the nomination can be
challenged on the ground that, in fact Art.173 is not
complied with. Cases falling under this class must be
distinguishedfrom cases falling under s.36(2)(b). In the
latter class of cases the failure to comply with the provisions
of s.33 being established there is no scope for any enquiry
under s.36(2) (a). Once the alleged noncompliance is
proved, the defective nomination falls to be accepted or
rejected accordingly as the defect is of an unsubstantial or
of a substantial character. Therefore, it is not right to hold
that even after the returning officer was satisfied that the
omission to specify his age showed that the nomination
paper of respondent 5 had not complied with the provisions
of s.33, he should still have held an enquiry under s.36(2)
(a). Noncompliance with the provisions of s.33 itself would
justify the rejection of the nomination paper provided of
course that the defect arising from the noncompliance in
question is of a substantial character.
That takes us to the question as to whether the failure to
specify the age in the nomination paper amounts to a defect
of a substantial character under s.36(4) or not. There is little
doubt that the age of the candidate is as important as his
identity, and in requiring the candidate to specify his age
the prescribed form has given a place of importance to the
declaration about the candidate's age. Just as the
nomination paper must show the full name of the candidate
and his electoral roll number, and just as the nomination
paper must be duly signed by the candidate, so must it
contain the declaration by the candidate about his age. It is
significant that the statement about the age of the candidate
is required to be made by the candidate above his signature
and is substantially treated as his declaration in that
behalf. That being the requirement of the prescribed
nomination form it is difficult to hold that the failure to
specify the age does not amount to a defect of a substantial
character. The prima facie eligibility of the person to stand
as a candidate which depends under Art.173 of the
Constitution, inter alia, on his having completed the age of
25 years is an important matter, and it is in respect of such
an important matter that the prescribed form requires the
candidate to make the declaration. It would, we think, be
unreasonable to hold that the failure to make a declaration
on such an important matter is a defect of an unsubstantial
character. In this connection, it is relevant to refer to the fact
that the declaration as to the symbols which the prescribed
form of the nomination paper requires the candidate to make
is by the proviso to rule 5 given a subsidiary place. The
proviso to rule 5 shows that any noncompliance with the
provisions of subrule (2) of rule 5 shall not be deemed to be
a defect of a substantial character within the meaning of
s.36, subsec. (4). In other words, this proviso seems to
suggest that, according to the rule making authority, failure
to comply with the requirements as to the declaration of
symbols as specified in rule 5, subrule (2), would have been
treated as a defect, of a substantial character; that is why
the proviso expressly provides to the contrary. This would
incidentally show that the failure to specify the age cannot
be treated as a defect of an unsubstantial character."
41. We also have to our benefit an important judgment of the
Supreme Court on the subject in the case of Rattan Anmol
Singh (supra). Rattan Anmol Singh (supra) has been
significantly relied upon by the learned senior counsel appearing
for the State Election Commission. In Rattan Anmol Singh
(supra), the Supreme Court was called upon to decide a
question, whether the Returning Officer was right in rejecting the
nomination paper of the first respondent therein. The facts in the
case of Rattan Anmol Singh (supra) are somewhat as under :
(a) There was a contest for two seats in the Punjab Legislative
Assembly. The Constituency is a double member constituency,
one seat being general and other seat reserved for a Scheduled
Caste. The first respondent Atma Ram was a candidate for the
reserved seat but his nomination was rejected by the Returning
Officer at the scrutiny stage and so, he was unable to contest the
election. The successful candidates were Rattan Anmol Singh,
the appellant in one appeal for the general seat and Ram
Prakash, the appellant in the other appeal for the reserved seat.
(b) The election tribunal decided in favour of the first
respondent by a majority of two to one and declared the whole
election void.
(c) The reason for rejection of nomination paper of Atma Ram
was that the proposer and seconder were illiterate and so placed
a thumb mark instead of a signature. However, the thumb
marks were not attested. The Returning Officer therefore held
that without attestation, they are invalid and rejected the
nomination. In that context, the Supreme Court has held that
the thumb mark made by the proposer and the seconder should
have been attested and without attestation, they are invalid.
Paragraph 13 of the said judgement is thus usefully extracted
here under:
"13. The four nomination papers we are concerned with
were not "signed" by the proposers and seconders in the
usual way by writing their names, and as their marks are
not attested it is evident that they have not been "signed" in
the special way which the Act requires in such cases. If they
are not 'signed' either in one way or the other, then it is clear
that they have not been "subscribed" because "subscribing"
imports a "signature" and as the Act sets out the only kinds
of "signatures" which is will recognise as "signing" for the
purposes of the Act, we are left with the position that there
are no valid signatures of either a proposer or a seconder in
any one of the four nomination papers. The Returning Officer
was, therefore, bound to reject them under Section 36 (2) (d)
of the Act because there was a failure to comply with
Section 33, unless he could and should have had resort to
Section 36(4)."
(d) A subsidiary question that arose before the Supreme Court
was whether assuming attestation to be necessary under the
Rules, an omission to obtain the required attestation amount to
a technical defect of an unsubstantial character which the
Returning Officer was bound to disregard under Section 36(4) of
the Representation of the People Act, 1951. The answer has been
given in Paragraph 14 of the said judgement which is usefully
extracted here under:
"14. That subsection is as follows:
"The Returning Officer shall not reject any nomination paper
on the ground of any technical defect which is not of a
substantial character."
The question, therefore, is whether attestation is a mere
technical or unsubstantial requirement. We are not able to
regard it in that light. When the law enjoins the observance
of a particular formality it cannot be disregarded and the
substance of the thing must be there. The substance of the
matter here is the satisfaction of the Returning Officer at a
particular moment of time about the identity of the person
making a mark in place of writing a signature. If the
Returning Officer had omitted the satisfaction because of
some slip on his part and it could be proved that he was
satisfied at the proper time, the matter might be different
because the element of his satisfaction at the proper time,
which is of the substance, would be there, and the omission
formally to record the satisfaction could probably 'in a case
like that', be regarded as a unsubstantial technicality. But
we find it impossible to say that when the law requires the
satisfaction of a particular officer at a particular time his
satisfaction can be dispensed with altogether. In our
opinion, this provision is as necessary and as substantial as
attestation in the cases of a will or a mortgage and is on the
same footing as the "subscribing" required in the case of the
candidate himself. If there is no signature and no mark the
form would have to be rejected and there absence could not
be dismissed as technical and unsubstantial. The
"satisfaction" of the Returning Officer which the Rules
require is not, in our opinion, any the less important and
imperative."
Thus, the Supreme Court held such defect as substantial in
character and it is not technical or unsubstantial.
(e) Yet another question that came for consideration before the
Supreme Court was whether the attestation can be compelled by
the persons concerned at the scrutiny stage. It has been held
that if substantial defect is found, it cannot be cured at the stage
of scrutiny of the nomination. Paragraph 15 of the said
judgement is thus usefully extracted here under:
"15. The next question is whether the attestation can be
compelled by the persons concerned at the scrutiny stage. It
must be accepted that no attempt was made at the
presentation stage to satisfy the Returning Officer about the
identity of these persons but evidence was led to show that
this was attempted at the scrutiny stage. The Returning
Officer denies this, but even if the identities could have been
proved to his satisfaction at that stage it would have been
too late because the attention and the satisfaction must
exist at the presentation stage and a total omission of such
an essential feature cannot be subsequently validated any
more than the omission of a candidate to sign at all could
have been. Section 36 is mandatory and enjoins the
Returning Officer to refuse any nomination when there has
been "any failure to comply with 'any' of the provisions of
Section 33......"
The only jurisdiction the Returning Officer has at the scrutiny
stage is to see whether the nominations are in order and to hear
and decide objections. He cannot at that stage remedy essential
defects or permit them to be remedied. It is true he is not to
reject any nomination paper on the ground of any technical
defect which is not of a substantial character but he cannot
remedy the defect. He must leave it as it is. If it is technical and
unsubstantial it will not matter. If it is not, it cannot be set right;
42. Thus, the Supreme Court, in Rattan Anmol Singh (supra)
made it abundantly clear that the only jurisdiction the Returning
Officer has, at the stage of scrutiny, is to ensure whether the
nominations are in order and to hear and decide the objections.
He cannot, at that stage, remedy the essential defects or permit
them to be remedied.
43. It is true, as observed by the Supreme Court, that the
Returning Officer should not reject any nomination paper on the
ground of any technical defect, which is not of a substantial
character, and he cannot remedy the defect. He must leave it as
it is. If it is technical and unsubstantial, it will not matter. If it is
not, it cannot be set right.
44. In the context of, whether the defect is technical or
substantial in nature, we may refer to a decision of this very
High Court rendered in the case of Jayaben Vijaybhai Vasoya
vs. State of Gujarat and others (SCA No.20941 of 2016,
decided on 26.12.2016). In the said case, a Coordinate Bench of
this Court referred to and relied upon a decision of the Supreme
Court in the case of Prahladdas Khandelwal vs. Narendra
Kumar Salave, (1973)2 SCC 104, and held that except for the
defects which are permitted to be removed or rectified under the
Act and the Rules, the Returning Officer is not empowered to
either get the defect rectified or ignore them. We quote the
relevant observations thus:
"10... The proviso to subrule (3) of rule 12 provides that the
returning officer shall permit any clerical or technical error in
the nomination paper in regard to the said names or
numbers to be corrected in order to bring them in conformity
with the corresponding entries in the list of voters. Therefore,
it is only if the names and numbers in the list of voters of the
candidate or his proposer or seconders as entered in the
nomination paper are not as those entered in the list of
voters, that the returning officer is required to draw the
attention of the candidate or his proposer or seconder as the
case may be, to this effect and to permit such error to be
corrected to bring them in conformity with the corresponding
entries in the list of voters. Except in the above
circumstances, the statute does not require the returning
officer to draw the notice of the candidate to any other
deficiency nor does the returning officer appear to be
empowered to permit the candidate to remove a deficiency
other than that provided in subrule (3) of rule 12 of the
rules."
45. As regards the failure to submit a valid political mandate
within the time period prescribed, we may refer to and rely upon
a decision of this Court in the case of Chandrikaben
Narsinhbhai Vaghela vs. State Election Commissioner and
others (SCA No.1539 of 2013 and allied petitions, decided on
12.02.2013). We quote the relevant observations thus :
"10.....it is an admitted position that mandate of the political
party was submitted after 3.00 p.m. As such, if Rule 12 of
the Rules is read with instruction No.15(3) of the Election
Commission, nomination form together with mandate of the
political party is required to be submitted latest by 3.00 p.m.
on the last day fixed for acceptance of nomination form,
such has not been complied with in the present case. As
Rule 12 of the Rules provides for rejection of nomination
form in the event it is submitted after 3.00 p.m., the same
situation should apply in the event mandate of the political
party is not submitted before the outer limit prescribed by
the Election Commission and the simple reason is that
nomination form could be said as complete only when it is
coupled with the details of mandate of the political party for
the candidate concerned. In view of the express language of
Rule 12 of the Rules read with the instructions issued by the
Election Commission, it cannot be said that such ground
was not available to the Election Officer for rejection of the
nomination form. It is true that in Rule 15, the ground is not
mentioned, but when it has been expressly provided under
Rule 12 of the Rules read with the instructions issued by the
Election Commission under Rule 11 of the Rules, it is not
possible for us to accept the contention that decision for
rejection of nomination form is on the ground not available to
the Election Officer."
46. As regards the scope of rule 15 of the Rules 1994, we may
refer to and rely upon the following observations made by this
Court in the case of Jayaben Vijaybhai Vasoya (supra) :
"12. Subrule (1) of rule 15 of the rules, provides for
affording facility to all candidates to examine the nomination
papers of all candidates except those that are rejected under
subrules (2) and subrule (6) of rule 12. Subrule (2) of rule
15 provides that after complying with subrule (1), the
returning officer shall then examine the nomination papers,
and shall decide all objections which may be made to the
nomination and may, either on such objection or on his own
motion after such summary inquiry, if any, as he thinks
necessary, reject any nomination paper on any of the
grounds enumerated thereunder. Thus, when subrule (1) of
rule 15 of the rules provides for affording facility to all
candidates to examine the nomination papers, it is the
nomination papers as shown to the candidates which
should form part of the record before the returning officer. If
subsequent to the nomination papers being examined by the
candidates, any changes are permitted to be made in the
nomination papers, it would defeat the purpose of the rule.
Therefore, removal of defects can be only prior to the stage
of scrutiny to the extent contemplated under subrule (3) of
the rule 12 of the rules. Considering the overall scheme of
the relevant provisions of the Act and the rules, there is
nothing contained therein to suggest that the returning
officer is empowered to permit a candidate to remove a
defect in the nomination paper except where specifically
provided for under rule 12 of the rules. It is probably for this
reason that under subrule (5) of rules 12, a candidate is
permitted to file as many as four nomination papers, so as
to ensure that at least one of such nominations is a valid
one.
13. ... The logic behind the provision could be that since
there is no provision for permitting a candidate to correct
any errors in the nomination paper once it is presented
before the returning officer, except to the limited extent
provided under subrule (3) of rule 12, a candidate can
rectify such mistake by filing another nomination paper, and
if such nomination paper does not suffer from any
irregularity his nomination cannot be rejected."
47. With regard to the subrule (5) of rule 15 of the Rules
1994, the Court observed as under :
"31.... It has been contended on behalf of the petitioner, that
the returning officer ought to have granted an opportunity to
the petitioner to rebut the objection raised by the returning
officer. Such contention is clearly misconceived, inasmuch
as, it is not as if the returning officer has called upon the
petitioner to meet with an objection raised by him or by any
person as contemplated under the proviso to subrule (5) of
rule 15 of the rules, but has granted an opportunity to the
petitioner on the date of scrutiny, to remove the defect in the
nomination paper by producing the requisite caste
certificate. The question of rebuttal would arise provided the
nomination paper presented by the petitioner was complete
in all aspects and an objection was raised on any ground,
including the ground that the petitioner did not belong to the
Scheduled Tribes, in which case, the returning officer would
be required to afford an opportunity to the petitioner to rebut
the objection and would be required to make an inquiry into
the objection and render his decision thereon. In the present
case, when there is an omission on the part of the petitioner
in not filling in the column stating that she belongs to the
Scheduled Tribes (which the returning officer has not even
taken note of probably because the petitioner has submitted
an affidavit stating that she belongs to the Hindu Bhil
community) as well as in not attaching a caste certificate
issued by the competent authority along with the nomination
paper, which can be said to be a defect of substantial
character given that the petitioner has filed nomination for a
seat reserved for the Scheduled Tribes, the petitioner ought
to have at least removed the defect on the date of the
scrutiny. The petitioner having failed to do so, no fault can
be found with the returning officer in rejecting the
nomination of the petitioner."
48. Thus, it is a settled position of law that whenever a statute
requires a particular act to be done in a particular manner and
also lay down that the failure to comply with the said
requirement leads to a specific consequence, it would be difficult
to accept the argument that the failure to comply with the said
requirement should lead to any other consequence.
49. This has relevance to the vociferous argument of Mr.Yagnik
that the FormK of all the writapplicants duly signed by the
authorized representative of the political party were forwarded to
the State Election Commission. The State Election Commission
has no role to play in the facts of the present case. A duly valid
FormK has to be presented before the Returning Officer in
accordance with the Rules, and are not to be forwarded to the
State Election Commission.
50. In Ramesh Rout (supra), the Supreme Court observed in
paragraphs 37 and 38 as under :
"37. Where a candidate is set up by a recognised political
party, clause (b)(i), PartIII of Form 2B becomes relevant as
by making declaration therein the candidate makes a
request that symbol reserved for such party be allotted to
him. It is for this reason that the requirements of para 13 of
the 1968 Order become integral part of Form 2B, PartIII
under Rule 4 of the 1961 Rules where a candidate is set up
by a recognised political party. We are unable to accept the
submission of Mr. K.K. Venugopal that para 13 of the 1968
Order cannot be read into Rule 4. Noncompliance of
requirements of para 13 of the 1968 Order, in our view, is a
defect of substantial character and the nomination paper of
a candidate proposed by a single elector set up by a
recognised political party having such defect is liable to be
rejected under Section 36(2)(b) as it tantamounts to non
compliance of the provisions of Section 33, namely, the
nomination paper having not been completed in the
prescribed form.
38. The proposed candidate admittedly filed his nomination
paper proposed by a single elector having been set up by
BJD, a recognised political party in the State of Orissa, and,
therefore, it was incumbent upon him that the requirements
of para 13 of the 1968 Order were fully complied with. In
other words, it was necessary for the proposed candidate
that Forms A and B referable to clauses (b), (c) and (d) of
para 13, 1968 Order were submitted to the Returning Officer
duly signed in ink by the authorised person of BJD not later
than 3.00 p.m. on April 4, 2009."
51. In Rakesh Kumar vs. Sunil Kumar, (1999)2 SCC 489, it
has been held that :
"A conjoint reading of the aforesaid provision, inter alia,
shows that after the amendment of Section 33(1) of the Act,
a nomination paper of a candidate in order to be valid must
be :
(i) where the candidate is set up by a political party;
(a) signed by the candidate and a proposer;
(b) contain a declaration by the candidate to the effect
that he has been set up by a recognised political
party;
(c) be supported by a notice [Forms A and B] duly
signed by the President, Secretary or any other office
bearer of the party duly authorised by the party to
send such a notice; and
(d) the name and specimen signatures of such an
authorised person are communicated to the Returning
Officer of the constituency and to the Chief Electoral
Officer of the State, not later than 3.00 p.m. on the last
date for making nominations;
(ii) where the candidate is not set up by a recognised
political party, his nomination paper shall be valid only if it
is subscribed by ten proposers, being electors of the
constituency."
52. It has further been provided in the case of Rakesh Kumar
(supra) that the Returning Officer appears to have been
labouring under some misconception when he recorded that the
political party "cannot be given further time to change such
authorisation after scrutiny". Under the proviso to Section 36(5)
of the Act, the scrutiny itself would have been postponed to the
adjourned time and, therefore, it was not a case of meeting the
objection after scrutiny of the nomination papers. The Returning
Officer is not expected to reject a nomination paper without
giving an opportunity to the candidate or his representative
present at the time of scrutiny to meet an objection capable of
being met, particularly where such an opportunity is sought for
by the candidate or his representative.
53. In the case of Rakesh Kumar (supra), it has been held by
the Supreme Court that an opportunity be afforded to a
candidate to meet an objection must be capable of one being
met. It was contended on behalf of the respondents that the
objection raised in respect of compliance of subpara (b) of 13 of
the Symbols Order was not capable of being met and, therefore,
the Returning Officer rightly did not grant time to he petitioner
to meet the objection. The contention cannot be said to be just
without force.
54. As regards the scope of summary inquiry, we may refer to
and rely upon a decision of the Supreme Court in the case of
Virindar Kumar vs. State of Punjab, AIR 1956 SC 153. In that
case, the question which came up for the consideration before
the Supreme Court was, whether the Returning Officer, while
conducting scrutiny of the nomination papers under Section
36(2) of the 1951 Act, functions as a court for the purpose of
Section 193 I.P.C. and Section 195(1)(b) Cr.P.C. The Supreme
Court held that the power conferred on the Returning Officer
under S.36 (2) of the 1951 Act to examine the nomination papers
and decide all objections which may be made thereto was
undoubtedly judicial in character but the Returning Officer was
not a court for the purpose of Section 195(1)(b) Cr.P.C. It is true
that Section 36(2) of the 1951 Act contains the expression "after
such summary enquiry, if any, as he thinks necessary." But, the
Supreme Court did not rely upon the said expression for the
purpose of holding that the functions of the Returning Officer
was judicial in character. The Supreme Court arrived at the
aforesaid inference on the basis of the power conferred on the
Returning Officer to examine the nomination papers and decide
the objections which may be made thereto. The expression "after
such summary, enquiry, if any, as he thinks necessary" was
relied upon by the Supreme Court to hold that the parties have
no right to insist on producing evidence which they may desire
to adduce in support of their case and that the enquiry is such
as is usually conducted by an " ad hoc" tribunal entrusted with a
quasi judicial power.
Few instances of technical defects not of substantial
character :
55. As lot has been argued on the question of "technical defect
not of a substantial character", we may give few instances where
the Supreme Court took the view that the defects were not of a
substantial character.
56. In the aforesaid context reference may be made to the
decision of the Supreme Court in Karnail Singh vs. Election
Tribunal Hissar (1954) 10 ELR 189). In that case, the
constituency for which the nomination paper was filed was
composed of two towns, viz. Sirsa and Dabwali, which were sub
divided into wards, and the electoral roll, instead of being divided
into parts, was divided into wards. In the nomination paper,
while the number of the ward and the serial number at which
the name of the candidate was enrolled were specified but the
name of the town to which the electoral roll related was not
given. At the time of scrutiny of the nomination paper the
candidate himself pointed out to the Returning Officer the entry
of his name in the electoral roll of the constituency, but the
Returning Officer rejected the nomination paper. The Election
Tribunal held that the nomination paper had been improperly
rejected since that the candidate had pointed out the entry in
the electoral roll to satisfy the Returning Officer that he was
enrolled as a voter in the electoral roll of the constituency. The
Supreme Court affirmed the said order of the Election Tribunal
on the view that there was no difficulty in identifying the
candidate and the candidate himself pointed out to the
Returning Officer the entry of his name in the electoral roll.
57. In Ram Awdesh Singh's case (AIR 1972 SC 580), the name
of the appellant was entered in the electoral rolls for the Arrah
Assembly Constituency as well as the Sandesh Assembly
Constituency. While filling the nomination paper for the Arrah
Assembly Constituency he filled in the electoral roll number of
the Arrah Constituency. Subsequently, he found that his name
had been deleted from the electoral roll of the Arrah
Constituency by a separate supplementary list. At the time of
scrutiny he produced before the Returning Officer, the certified
copy of the electoral roll of the Sandesh Constituency and the
Returning Officer accepted his nomination paper. The High
Court held that the nomination paper of the appellant had been
improperly accepted and, on that view, setaside the election of
the appellant. The Supreme Court reversed the decision of the
High Court and held that the nomination paper of the appellant
had been properly accepted because the candidate at the time of
scrutiny, had with him, a certified copy of the electoral roll of the
Sandesh Constituency and he had shown the same to the
Returning Officer. In that case, the Supreme Court has also
observed that from a combined reading of Sections 33 and 36 of
the 1951 Act, it was clear that a misdescription as to the
electoral roll number of the candidate or of the proposer in the
nomination paper is not to be considered as a material defect in
the nomination paper.
58. In Heera Singh Pal v. Madan Lal, AIR 1968 SC 1179, the
candidate whose nomination was rejected had filed two
nomination papers. In one nomination paper he gave the correct
particulars of the serial number as well as part number of the
electoral roll relating to his name but gave the wrong particulars
of the electoral roll number and part number of his proposer. In
the second nomination paper, the part number of the electoral
roll in which the name of the candidate was mentioned was
incorrect but the serial number and the part number of the
electoral roll of the proposer was correct. The Supreme Court
held that the nomination of the candidate was improperly
rejected for the reason that although the candidate had
mentioned the wrong part number of the electoral roll with
regard to his name in the second nomination paper, yet the
Returning Officer could have easily found out the correct part
number of the electoral roll from the first nomination paper and
that all the required information was before him.
59. We, in the last, propose to look into the matter in hand
keeping in mind rule 4 of the Conduct of Elections Rules, 1961,
as framed under the Representation of the People Act, 1951.
60. Rule 4 of the Conduct of Elections Rules requires every
nomination paper presented under subsection (1) of Section 33
of the Representation of the People Act to be complete in such
one of the Forms 2A to 2E respectively as may be appropriate
and, therefore, the blank space meant for showing three symbols
in order of preference as symbols of the candidate's choice, has
to be filled in; however, nonfiling of the space as to the choice of
the symbol is not a defect of a substantial character. Such
deficiency in the nomination paper is saved by the proviso to
Rule 4 of the Conduct of Elections Rules, 1961 which provides
that the failure to complete or defect in completing the
declaration as to the symbol in a nomination paper shall not be
deemed to be a defect of a substantial character within the
meaning of subsection (4) of Section 36. While dealing with this
aspect of the case, in the case of Krishna Mohini v. Mohinder
Nath Sofact, reported in AIR 2000 SC 317, the Supreme Court
has observed that the distinction between the nomination filed
by a candidate set up by a recognised political party and a
candidate not set up by a recognised political party is precise. A
perusal of the first proviso to subsection (1) of Section 33 of the
Act makes it clear that a candidate not set up by a recognised
political party, meaning thereby a candidate set up by an
unrecognised political party or an independent candidate, in
order to be duly nominated for election, must have his
nomination paper subscribed by ten proposers being electors of
the constituency. If such nomination paper be subscribed by
only one elector as proposer or by a number of electors less than
ten, then it will amount to noncompliance with the provisions of
Section 33. In order to be a candidate set up by a registered and
recognised political party so as to take advantage of being
proposed by a single elector, all the four requirements set out in
subparas (a), (b), (c) and (d) of para 13 of the Symbols Orders
must be satisfied. If any one or more of the requirements are not
satisfied, the benefit of nomination being proposed by a single
elector is not available to him. A situation can be visualised
where more candidates than one may be aspiring to be the
candidates, each set up by the same recognised political party.
The one in respect of whom notice and communication in Forms
'A' and 'B' referable to subparas (b), (c) and (d) of para 13 of the
Symbols Order have been filed not later than 3:00 p.m. on the
last date for making nominations shall be treated as a candidate
set up by such political party. His nomination paper, even if
subscribed to by a single elector as proposer, shall be valid
subject to satisfying other conditions as to the validity. If any of
the requirements as prescribed by subparas (b), (c) and (d) of
para 13 of the Symbols Order are not complied with by filing the
requisite notice and communication, then the candidate shall
not be deemed to be one set up by the recognised political party,
his nomination, if subscribed by a single elector or electors less
than ten, shall be liable to be rejected. If the nomination paper of
such a candidate is subscribed to by ten proposers being
electors of the constituency within the meaning of the first
proviso to subsection (1) of Section 33 of the Act, then the
nomination paper cannot be rejected because an error or
omission as regards the symbols or choice thereof being a defect
not of a substantial character, would not come in the way of the
nomination being accepted, but if the nomination paper and
such a candidate is subscribed to by only one proposer and
Form B has not been filed within the stipulated time, then non
filing of Form B would be a defect of substantial character.
61. Thus, it is clear that if the requirements contemplated in
clause no.17(3) of the Symbol Order, 2012, is not complied with
by filing the requisite FormK not later than 3:00 p.m. on the
last date of making the nominations, then the candidate shall
not be deemed to be one set up by the recognised political party
and his nomination paper, if subscribed by a single elector, shall
be liable to be rejected.
62. We have also looked into all the judgments relied upon by
Mr.Yagnik, the learned counsel appearing for the writ
applicants. However, we are of the view that none of the
judgments upon which significant reliance has been placed are
of no avail to the writapplicants.
63. Thus, in the overall view of the matter, we are convinced
that no case is made out by the writapplicants for issue of any
writ, order or direction to the respondents to accept the
nomination forms or to hold that the nomination forms filled up
by them are valid and they are entitled in law to contest the
Panchayat elections scheduled to be held on 28th February 2021.
The aforesaid discussion may be summed up thus :
(1) Ordinarily, the High Court should be loath in staying
an election or pass any order which may result in the
election being postponed. Where, however, the matter is
brought before the High Court sufficiently in advance,
where the matter can be heard and disposed of before the
polling is due to take place and where there is an error
apparent on the face of the record, there is no reason why
the High Court should not correct that error. For instance,
if a Returning Officer rejects a nomination on wholly
inadequate grounds, it would save public time and money
as well as expenses, inconvenience and hardships to the
parties if the Returning Officer's action is corrected before
the election takes place. The relief should not be declined
merely because the writapplicant can pursue another
remedy by filing an election petition after the election is
held. Each case should be considered on its own facts and
where, without staying or postponing the election, it is
possible to put the matters right before the election took
place, it may, in appropriate cases, be desirable to do so.
(2) The distinction between the nomination filed by a
candidate set up by a recognised political party and a
candidate not set up by a recognised political party is
precise. The Rules of 1994 draw a clear distinction between
the persons contesting the election on the 'ticket' issued by
a political party and a candidate not affiliated to any
political party and contesting the election as an
independent candidate.
(3) The political mandate assumes great importance,
more particularly, having regard to the Rules of 1994.
FormK and FormKH constitute two very vital and
important documents. FormK and FormKH are two
documents which talk about the political mandate. FormK
pertains to the authorizaation issued by the Party
President of a political party in favour of the person(s) to
grant the political mandate in favour of a contesting
candidate, whereas FormKH is the grant of the mandate in
favour of a contesting candidate.
(4) Nomination form is liable to be rejected on the
ground of an invalid FormK. In the absence of the
signature of the authorized representative in the FormK,
such form could be treated as an invalid form. Without a
duly signed FormK in the prescribed format, the FormKH
would also be of no consequence or value. The FormsK
and KH respectively together form a valid political
mandate. The deficient or an invalid FormK cannot be said
to be a technical defect but is a defect of a substantial
character and the Returning Officer has no other option
but to reject the nomination form on such ground.
(5) In a case wherein the Returning Officer finds that the
FormK and FormKH are invalid, then in such
circumstances there is no scope of any summary inquiry at
the end of the Returning Officer. At the most, the
Returning Officer may give an opportunity to the concerned
person to produce a valid FormK and FormKH within the
statutory time period as prescribed under the Rules, but
the two forms cannot be produced on the date of scrutiny.
(6) The only jurisdiction the Returning Officer has, at the
stage of scrutiny, is to see whether the nominations are in
order and to hear and decide the objections. He cannot, at
that stage, remedy the essential defects or permit them to
be remedied. He is not to reject any nomination paper on
the ground of any technical defect which is not of a
substantial character but he cannot remedy the defect. He
must leave it as it is. If it is technical and unsubstantial it
will not matter. If it is not, it cannot be set right.
(7) Whenever a statute requires a particular act to be
done in a particular manner and also lay down that the
failure to comply with the said requirement leads to a
specific consequence, it would be difficult to accept the
argument that the failure to comply with the said
requirement should lead to any other consequence.
(8) If the requirement contemplated in Clause No.17(3)of
the Symbol Order, 2012, is not complied with by filing the
requisite FormK not later than 3:00 p.m. on the last date
of making the nominations, then the candidate shall not be
deemed to be one set up by the recognized political party
and his nomination paper, if subscribed by a single elector,
will be liable to be rejected. In other words, if any of the
requirements as prescribed by subparas (a), (b), (c) and (d)
of para 13 of the Symbol Order are not complied with by
filing the requisite notice and communication, then the
candidate shall not be deemed to be one set up by the
recognized political party.
64. While issuing notice in the case on hand, we had observed
something as regards the presence of a cabinet rank Minister in
the office premises of the Returning Officer on 13 th February
2021.
65. It is the case of the writapplicants that in fact the
Returning Officer had already made himself clear on the date of
scrutiny that the nomination forms have been accepted and they
need not worry, however, the tables turned at the last minute
with the Minister intervening in the matter and getting the
nomination forms rejected. It has been very boldly and
emphatically argued before us that the presence of the Minister
can be taken note of if the CCTV footage is called for by this
Court. We do not intend to go into the issue, whether the
Minister was, in fact, present in the office premises of the
Returning Officer on 13th February 2021 or not. In this regard,
all the allegations levelled have been outright denied by both, the
State Election Commission as well as by the Returning Officer.
66. As we have decided the neat questions of law as regards
the validity of the nomination forms and having taken the view
that the nomination forms of the writapplicants without a valid
FormK were liable to be rejected in law, there is no point now in
going into the aforesaid issue, i.e. whether any pressure was
exerted by the Minister on the Returning Officer.
67. The allegations levelled against a cabinet rank Minister
reminds us of the observations made by Justice Grover (As His
Lordship then was) in the cae of P.R.Belagali vs. B.D.Jatti,
(1971)1 SCR 8, which make a vain echo in the present case :
"Free and fair elections are the very foundation of
democratic institutions and just as it is said that justice
must not only be done but must also seem to be done,
similarly elections should 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 that everything has
been above board and has been done to ensure free
elections. It will be a sad day in the history of our country
when the police and the government officers create even :an
impression that they are interfering for the benefit of one or
the other candidate. This is particularly so if a candidate is
holding an important position or assignment like respondent
No.1, who at the material time was a Minister in the State."
68. In the case of Rahim Khan vs. Khurshid Ahmed and
others, AIR 1975 SC 290, Justice Krishna Iyer has referred to an
extract of a speech of former Chief Justice of the Supreme Court
delivering the Lajpatrai Memorial lecture. We quote :
"A few prefatory observations are necessary before we
discuss the evidence, apply the law and reach our
conclusions. It is of the first importance that elections must
be free and fair if the democratic system is not to founder.
Not long ago a Chief Justice of this Court, delivering the
Lajpatrai Memorial Lecture, observed:
"Untruths before elections, during elections and after
elections seem to be too prevalent for a healthy political
society." He also tartly remarked in that speech: "There is
always a danger of the failure of democracy. 'Remember',
said John Adams, 'remember, democracy never lasts long. It
soon wastes, exhausts and murders itself. There never was
a democracy that did not commit suicide. We must realise
that this is entirely true.""
69. Thus, what we want to convey is that the high
constitutional functionaries, like the cabinet rank ministers,
should not indulge in any activity, more particularly, during any
election, which may give chance to the people to level allegations.
Such allegations will have a direct impact on the concept of free
and fair election. At times, something done in good faith is also
likely to be misunderstood on account of the high tempo of
election.
70. For the foregoing reasons, this writapplication fails and is
hereby rejected. The Civil Application would not survive and the
same is disposed of accordingly.
(J. B. PARDIWALA, J.)
(ILESH J. VORA, J.)
/MOINUDDIN
