Madhya Pradesh High Court
State Election Commission vs Smt. Shamabai on 28 June, 2022
Author: Vivek Rusia
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W.A. No.710/2022
HIGH COURT OF MADHYA PRADESH: BENCH INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 28th OF JUNE, 2022
WRIT APPEAL No. 710 of 2022
Between:-
STATE ELECTION COMMISSION THROUGH CHIEF ELECTION
1. OFFICER NIRWACHAN BHAWAN, 58 ARERA HILLS (MADHYA
PRADESH)
RETURING OFFICER (PANCHAYAT) NEEMUCH COLLECOR
2.
OFFICE (MADHYA PRADESH)
ASSISTANT RETURNING OFFICER (PANCHAYAT) NEEMUCH
3.
COLLECOTR OFFICE (MADHYA PRADESH)
.....APPELLANT
(SHRI UMESH GAJANKUSH, LEARNED ADDL. ADVOCATE
GENERAL WITH SHRI KAMAL NAYAN AIREN, ADVOCATE FOR
THE APPELLANTS)
AND
SMT. SHAMABAI W/O SURESH DHANAGAR , AGED ABOUT 36
1. YEARS, OCCUPATION: HOUSEWIFE VILLAGE BAMANI POS
JALINER TEHSIL MANASA (MADHYA PRADESH)
PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
2. PRINCIPAL SECRETARY VALLABH BHAWAN BHOPAL M.P.
(MADHYA PRADESH)
RADHA W/O DINESH PARIHAR VILLAGE HANSPUR TEHSIL
3.
MANASA (MADHYA PRADESH)
.....RESPONDENTS
(SHRI SANDEEP MEHTA, LEARNED COUNSEL FOR THE
RESPONDENT)
This appeal coming on for orders this day, JUSTICE VIVEK
RUSIA passed the following:
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W.A. No.710/2022
ORDER
The appellants (respondents No.2 to 4 in the writ petition)
have filed the present writ appeal against order dated 20.6.2022
passed in W.P. No.13057/2022 whereby the learned Writ Court has
directed them to allow the writ petitioner to cure the defects in
nomination papers within 3 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, Village
Kotada Bujurg, Tehsil Garoth, District Mandsaur under UR
Category . Undisputedly Apart from others documents, she was
required to submit "No Dues Certificate" issued by the Electricity
Company along with Nomination Form . Instead of submitting the
No Dues Certificate in her name, she has submitted the No Dues
Certificate issued in the name of her husband. The Nomination
Form was scrutinized by the Returning Officer on 7.6.2022.
However, on the same day, the Returning Officer rejected the
nomination form as the petitioner has not submitted the No Dues
Certificate issued in her name. The petitioner submitted an
objection by way of appeal before the State Election Commission
on 10.6.2022 and rushed to this Court by way of the writ petition.
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W.A. No.710/2022
2. The writ petition came up for hearing on 15.6.2022 and the
counsel appearing for State Election Commission sought time to
file a reply. After filing of the reply, the writ petition was heard
finally on 20.6.2022 and the same has been allowed by quashing
the order dated 7.6.2022 with a direction to allow the petitioner to
cure the defects within 3 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 Umesh Gajankush, learned Addl. Adv. General
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
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W.A. No.710/2022
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 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 Sameer Athawale, learned counsel
appearing on behalf of the respondent/writ petitioner, has argued in
support of the judgment by submitting that since there was no
electricity connection in the name of the petitioner, therefore, she
was not required to obtain the No Dues Certificate. In the house of
the petitioner the electricity connection is in the name of her
husband, therefore, she obtained the said certificate in the name of
her husband and filed the same along with the nomination form.
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
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W.A. No.710/2022
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 documents are attached to
it but without authority, he has, later on, he has rejected it, which is
not permissible in law. It was a bonafide mistake on part of the
petitioner which could have been rectified if the opportunity was
given to her. Shri Athwale learned counsel submits that now the
petitioner has obtained no dues certificate from electricity company
and she is ready to file the same as directed by the writ court,
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.710/2022
8. The writ petitioner filed the writ petition before this Court on
9.6.2022 and the same came up for hearing on 15.6.2022. Mr
Kamal Nayan Airen, Advocate appeared on behalf of respondent
No.2 and sought three days to file a reply. Thereafter, the writ
petition was finally heard on 20.6.2022 and the same was allowed.
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W.A. No.710/2022
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 "No Dues
Certificate" in her name. She filed the "No Dues Certificate" issued
in the name of her husband. The candidate must fulfil the essential
qualification or have all the required certificates on the last date of
submission of the form, it is settled law. Admittedly she was not
having the "No Dues Certificate" in her name, hence we are of the
considered opinion that the Returning officer did not commit any
error while rejecting her 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)
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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
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 influence by the findings given by this Court as well as by the
Division Bench of this High Court while hearing the Election
Petition.
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W.A. No.710/2022
With the aforesaid, this writ appeal stands allowed. No order
as to cost
[ VIVEK RUSIA ] [AMAR NATH (KESHARWANI)]
JUDGE. JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2022.06.30 10:29:07 +05'30'
