Madhya Pradesh High Court
Madhya Pradesh Election ... vs Rani on 4 July, 2022
Author: Vivek Rusia
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W.A. No.767/2022
HIGH COURT OF MADHYA PRADESH: BENCH INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 4th OF JULY, 2022
WRIT APPEAL No. 767 of 2022
Between:-
MADHYA PRADESH ELECTION COMMISSION THROUGH
1. CHIEF ELECTION OFFICER 58, ARERA HILLS BHOPAL
(MADHYA PRADESH)
DISTRICT ELECTION OFFICER (COLELCTOR) COLLECTOR
2.
OFFICE, RAJGARH (MADHYA PRADESH)
DEPUTY ELECTION OFFICER UPKHAND SARANGPUR,
3.
RAJGARH (MADHYA PRADESH)
RETURNING OFFICER (PANCHAYAT) VIKASKHAND
4.
SARANGPUR, RAJGARH (MADHYA PRADESH)
.....APPELLANT
(KAMAL NAYAN AIREN, LEARNED COUNSEL FOR THE
APPELLANTS)
AND
RANI W/O SHRI PAWAN KUMAR , AGED ABOUT 30 YEARS,
1. OCCUPATION: HOUSEWIFE VILLAGE MAU, TEHSIL
SARANGPUR (MADHYA PRADESH)
STATE OF M.P., PRINCIPAL SECRETARY PANCHAYAT AND
2. RURAL DEVELOPMENT DEPARTMENT VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(MANISH KUMAR VIJAYVARGIYA APPEARED FOR RESPONDENT
NO.1)
This appeal coming on for orders this day, JUSTICE VIVEK
RUSIA passed the following:
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W.A. No.767/2022
ORDER
The appellants (respondents No.2 to 5 in the writ petition)
have filed the present writ appeal against order dated 28.6.2022
passed in W.P. No.14023/2022 whereby the learned Writ Court has
directed them to allow the writ petitioner to cure the defects in
nomination papers within 2 days and to proceed further as per the
election program.
The facts of the case, in short, are as under :
1. The State Election Commission has declared the election
program for Panchayat elections on 27.5.2022 under the provisions
of Rule 31 of M.P. Panchayat Nirvachan Niyam, 1995 (hereinafter
referred to as "Nirvachan Niyam, 1995" for short). The writ
petitioner submitted her Nomination Form for contesting the
election for the post of Surpanch for Gram Panchayat Mau, Vikas
Khand Sarangpur, District Rajgarh which is reserved for "Other
Backward Classes" (OBC) Category. Undisputedly apart from
others documents, she was required to submit caste certificate of
her own, but instead she has filed the caste certificate of her
husband and filed an affidavit of her own that she belongs to OBC.
As the petitioner failed to file her caste certificate, the Returning
Officer has rejected her Nomination Form vide order dated
15.6.2022. Being aggrieved by the aforesaid order the petitioner
filed W.P. No.14023/2022 before this Court on 21.6.2022.
2. The writ petition came up for hearing on 22.6.2022 and the
counsel appearing for State Election Commission sought time to
file a reply. After filing of the reply, the writ petition was heard
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finally on 28.6.2022 and the same has been allowed by quashing
the order dated 15.6.2022 with a direction to allow the petitioner to
cure the defects within 2 days and to proceed further with the
election program, on the grounds that the error committed by the
petitioner in submitting her nomination form can be said to be
technical in nature or a defect which is not substantial for which an
opportunity to cure the same ought to have been given by the
Returning Officer as provided in Section 35(4) of the Nirvachan
Niyam, 1995. Hence the present writ appeal before this Court.
3. The appellants/State Commission has filed this writ appeal
on the ground that the learned Writ Court has wrongly interfered
with the election process by issuing a writ. The last date of
correction of nomination papers had already been passed;
thereafter, election symbols have been allotted to the contesting
candidates and they have started campaigning. It is further
submitted that the writ petition was not maintainable as the
petitioner is having remedy to challenge the election under the M.P.
Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 read with
Nirvachan Niyam, 1995.
4. Shri Kamal Nayan Airen, learned counsel appearing for the
appellants has placed reliance on Rule 38 of M.P. Panchyat
Nirvachan Niyam, 1995 which provides preparation of a list of
contesting candidates by the Returning Officer. The said list shall
contain the names in alphabetical order and thereafter allotment of
symbols shall be made under Rule 39. It is further submitted that
once the election has been notified and the election process has set
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into motion under Article 243O(b) of the Constitution of India no
court should interfere except by way of the Election Petition . He
further submits that admittedly the petitioner did not submit the No
Dues Certificate issued in her name as she herself was intending to
contest the election. The Writ Court has wrongly found the said
defect as a technical error in the nomination and wrongly allowed
the petitioner with direction to cure the same after the expiry of the
date of scrutiny of the nomination form and publication of the final
list of contesting candidates.
5. Per contra, Shri Manish Vijayvargiya, learned counsel
appearing on behalf of the respondent/writ petitioner, has argued in
support of the judgment by submitting that since the petitioner was
not having the caste certificate she filed the caste certificate of her
husband and she has also filed an affidavit to that effect. Learned
counsel submits that the learned Writ Court has rightly found that
the nomination form of the petitioner has improperly been rejected
by the Returning Officer in violation of the guidelines issued by the
Election Commissioner without giving her an opportunity to
correct the same. The Writ Court has also held that the writ petition
is maintainable by placing reliance on a judgment passed by the
apex Court in the case of Dravid Munnetra Kazhagam (DMK)
V/s. Secretary, Governer's Secretariate and others : (2020) 6 SCC
548. Learned counsel further submits that even at this stage, the
respondent/writ petitioner is ready to participate in the election on
allotment of any symbol by the Commission. It is further submitted
by the learned counsel that the Returning Officer has checked the
Nomination Form of the petitioner and certified that all the
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documents are attached to it but without authority, he has, later on,
he has rejected it, which is not permissible in law, hence, prays for
dismissal of the writ appeal.
6. We have heard the learned counsel for the parties at length
and perused the material available on record.
7. Vide order dated 27.5.2022 the State Election Commission
has declared the election program and according to which the last
date of submission of nomination form was 6.6.2022 and 7.6.2022
was fixed for scrutiny of the Nomination Form. The final list of
contesting candidates and allotment of the symbol was to be done
on 10.6.2022 and thereafter voting has been scheduled in three
phases i.e. on 25.6.2022, 1.7.2022 and 8.7.2022. The aforesaid
election program is reproduced below :
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W.A. No.767/2022
8. The writ petitioner filed the writ petition before this Court on
21.6.2022 and the same came up for hearing on 22.6.2022. Mr
Kamal Nayan Airen, Advocate appeared on behalf of respondent
No.2 to 5 and sought three days to file a reply. Thereafter, the writ
petition was finally heard on 28.6.2022 and the same was allowed.
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During this intervening period, scrutiny of nomination papers has
been done; allotment of symbols has also been done, and the final
list of contesting candidates with the allotment of symbols has been
published on 10.6.2022 and now only the voting is to be held as per
election program. All the candidates have started their election
campaigns. Therefore, at this stage, correction in the Nomination
Form and allotment of symbol and showing the name of the
petitioner in the list of contesting candidates is not possible. The
petitioner will not get a sufficient period to do the campaigning for
the election. Even otherwise, all the contesting candidates have not
been made a party in the writ petition against whom the petitioner
is willing to contest the election and share their votes.
9. That undisputedly the candidate who is an aspirant to the
election must file all the required documents related to him/her
along with the Nomination Form. In this case, at the time of filling
the Nomination Form petitioner did not have the caste certificate.
She filed the caste certificate of her husband and also filed an
affidavit to that effect. The candidate must fulfill the essential
qualification or have all the required certificates on the last date of
submission of the form, it is settled law. We have examined the
contents of the affidavit filed by the petitioner same does not
disclose that she belongs to OBC category. It is not necessary that if
husband belongs to a particular caste, the wife would also belong to
the same caste. The caste cannot be changed by way of adoption,
marriage, etc. Even as on today, the petitioner is unable to produce
her caste certificate. Hence we are of the considered opinion that
the Returning officer did not commit any error while rejecting her
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Nomination Form
10. Besides the above, the writ petitioner is not remedy-less as
after notification of the results of the election she may file an
election petition under the provisions of M.P. Panchayats (Election
Petitions, Corrupt Practices and Disqualification for Membership)
Rules, 1995. Rule 21 provides grounds for declaring an election to
be void in which Rule 21(1)(d) specifically provides that the
specified officer may declare the election of a returned candidate as
void if he is of the opinion that the nomination form has been
improperly rejected. Therefore, if the petitioner believes that her
nomination form has wrongly been rejected, she can establish this
fact in the election petition. Due to lapse of time and the upcoming
date of voting the impugned order passed by the learned writ court
cannot be complied with. Hence, at this stage, interference by the
writ Court in the election process was not justified.
The Division Bench of this High Court of this court in the
case of State Election Commission Versus Ras Bihari reported in
AIR 1984 MP 245 has held as under:-
"Illegal rejection or acceptance of nomination papers, even
illegal rejection of nomination papers leading to the only one
candidate being left in the field is capable of correction by the
Election Tribunal, thereby safeguarding the legality and purity of
election. Rule 17(3) of the Rules cannot be regarded as
empowering the Commission to interfere with the order passed
by the Returning Officer accepting or rejecting the nomination
papers. Wrongful acceptance or rejection of nomination paper is
a ground which could be urged in Election Petition under the
M.P. Panchayats (Election Petitions, Corrupt Practices and
Disqualification for Membership) Rules, 1991."
Accordingly, this writ appeal is allowed and the impugned
order passed by the Writ Court is quashed. The writ petitioner shall
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be at liberty to file an election petition after notification of the
result of the election. It is made clear that the presiding officer shall
not be influenced by the findings given by this Court as well as by
the Division Bench of this High Court while hearing the Election
Petition.
With the aforesaid, this writ appeal stands allowed. No order
as to costs.
[ VIVEK RUSIA ] [AMAR NATH (KESHARWANI)]
JUDGE. JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2022.07.05 17:13:05 +05'30'
