Madhya Pradesh High Court

Munna Lal vs The State Of Madhya Pradesh on 29 June, 2022

Author: Gurpal Singh Ahluwalia

                                 1

         IN THE HIGH COURT OF MADHYA PRADESH
                      AT GWALIOR

                             BEFORE

     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA

                     ON THE 29rd OF JUNE, 2022

                  WRIT PETITION No. 14247 of 2022

      Between:-

1.    MUNNA LAL S/O LATE SHRI
      MURARILAL, AGE 60 YEARS,
      OCCUPATION:     BUSINESS    R/O
      LADHEDI,    NEAR      HANUMAN
      MANDIR, GWALIOR (MADHYA
      PRADESH).
2.    DR. RAKESH KUMAR BATHAM S/O
      LATE   SHRI    BHAGWAN      LAL
      BATHAM,    AGE     47    YEARS,
      OCCUPATION             MEDICAL
      PRACTITIONER, R/O KRISHNA
      COLONY JAGNAPURA, LADHEDI,
      GWALIOR (MADHYA PRADESH)
3.    RAMDEEN MANJHI S/O LATE SHRI
      RAM SINGH MANJHI, AGE 54
      YEARS, OCCUPATION BUSINESS,
      R/O    KHARKUA,        LADHEDI,
      GWALIOR (MADHYA PRADESH)
4.    VIKRAM MANJHI S/O LATE SHRI
      MOHAN MANJHI, AGE 37 YEARS,
      OCCUPATION      LABOUR,     R/O
      KHARKUA, LADHEDI GWALIOR
      (MADHYA PRADESH)
5.    HETRAM     S/O    LATE     SHRI
      KISHORILAL, AGE 70 YEARS,
      OCCUPATION     BUSINESS,    R/O
                                            2

       JAGNAPURA,      KHARKUA,
       LADHEDI, GWALIOR (MADHYA
       PRADESH)

                                                             ........PETITIONERS

       (BY SHRI ABHISHEK SINGH BHADORIYA - ADVOCATE)

       AND

   1. MADHYA     PRADESH    STATE
      ELECTION        COMMISSION
      THROUGH ITS CHIEF ELECTION
      COMMISSIONER,    NIRVACHAN
      BHAWAN   58, ARERA HILLS,
      BHOPAL (MADHYA PRADESH).

   2. COLLECTOR/       RETURNING
      OFFICER, DISTRICT GWALIOR
      (MADHYA PRADESH)

   3. ASSISTANT RETURNING OFFICER,
      DISTRICT GWALIOR (MADHYA
      PRADESH)
                                                           ........RESPONDENTS

        (SHRI JITESH SHARMA - GOVERNMENT ADVOCATE FOR
THE STATE)
----------------------------------------------------------------------------------------
       This petition coming on for hearing this day, the Court passed the
following:
                                      ORDER

This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-

"i) That, impugned order contained in Annexure /1 (Colly.) may kindly be quashed and the petitioners be

declared to be eligible for reserved seat of S.T. Category in election of the Counsellor Ward No.6 Municipal Corporation Gwalior (M.P.) for all purposes.

ii) Cost of the petition be awarded or any other order deemed fit in the circumstances of the present case may be passed."

2. It is submitted by the counsel for the petitioners that the petitioners had submitted their nomination papers for the post of Counsellor Ward No.6, Gwalior. However, their nomination papers have been wrongly rejected.

3. It is submitted that a writ petition under Article 226 of the Constitution of India is maintainable against improper rejection of candidature. The petitioner has relied upon a judgment passed by a Co- ordinate Bench of this Court in the case of Smt. Shamabai vs. Panchayat and Rural Development and others passed on 20.6.2022 in W.P.No.12982/2022.

4. Per contra, the petition is vehemently opposed by the counsel for the respondent/State. It is submitted that in view of the bar as contained under Article 243-(O)(b) of the Constitution of India, the petition is not maintainable.

5. Heard the learned counsel for the parties.

6. Article 243-O of the Constitution of India reads as under:-

"243O. Bar to interference by courts in electoral matters.-- Notwithstanding anything in this Constitution--

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under article 243K, shall not be called in question in any court;

(b) 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."

7. During course of arguments, it was fairly conceded by the counsel for the petitioners that improper rejection or acceptance of nomination paper can be a ground for filing an election petition but he submitted that when he can contest the present election, then why he should wait for the outcome of the election petition thereby resulting in wastage or misuse of huge public money for conducting present election. However, he fairly conceded that right to contest the election is not a fundamental right but it is a statutory right.

8. The Supreme in the case of Election Commission of India vs. Ashok Kumar and others reported in (2000) 8 SCC 216 had held as under:

30. To what extent Article 329(b) has an overriding effect on Article 226 of the Constitution? The two Constitution Benches have held that Representation of the People Act, 1951 provides for only one remedy; that remedy being by an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. The non obstante clause with which Article 329 opens, pushes out Article 226 where the dispute takes the form of calling in question an election (see para 25 of Mohinder Singh Gill case [(1978) 1 SCC 405 : AIR 1978 SC 851] ). The provisions of the Constitution and the Act read together do not totally exclude the right of a citizen to approach the court so as to have the wrong done remedied by invoking the judicial forum; nevertheless the lesson is that the election rights and remedies are statutory, ignore the trifles even if there are irregularities or illegalities, and knock the doors of the courts when the election

proceedings in question are over. Two-pronged attack on anything done during the election proceedings is to be avoided -- one during the course of the proceedings and the other at its termination, for such two-pronged attack, if allowed, would unduly protract or obstruct the functioning of democracy.

31. xx xx

32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:

(1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.

(2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.

(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.

(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court.

(5) The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.

9. Thus. it is clear that the election rights and remedies are statutory in nature and the aggrieved party has a right to knock the doors of courts after the election proceedings in question are over. Any attack or anything done during election proceedings must be avoided. In paragraph 32 of the judgment passed in the case of Ashok Kumar (supra) it has been held that anything which have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of

judicial remedy has to be postponed till after the election proceedings are completed.

10. If the contention of the counsel for the petitioners that their nomination papers have been wrongly rejected is considered, then it is not an order which effects the society at large but it gives rise to an individual grievance. Whether the nomination papers were wrongly rejected or not, is also a disputed question of fact which can only be decided after evidence is led. Even otherwise, ultimately if it is found that the nomination papers of the petitioners were wrongly rejected, then the Election Tribunal is well within its right to declare the election void and direct for conducting a fresh election. In case if the elections are held to be void or quashed or set aside, then the petitioners would get an opportunity to contest the election. Merely because the nomination paper has been rejected, that does not mean that it would invite any kind of disqualification from contesting any future election.

11. The Full Bench of Bombay High Court in the case of Karmaveer Tulshiram Autade vs. The State Election Commission by order dated 13.1.2021 passed in Writ Petition (ST.) No.26/2021 has held as under:

68. For the reasons aforesaid, while agreeing with the view in Vinod Pandurang Bharsakade (supra), we answer the fundamental question as formulated in paragraph 27 in the sng wpst-26 & 28.2021 negative. As a sequel thereto, we answer the questions referred by the Division Bench in the manner as follows:-

(i) Allowing a challenge in a writ petition to rejection of nomination form to contest an election and granting the relief claimed by setting aside such order of rejection is definitely not a step to sub-serve the progress of election and/or facilitate

its completion in the sense enunciated in Mohinder Singh Gill (supra) and explained in Ashok Kumar (supra) though it may not always amount to intervention, obstruction or protraction of the election;

(ii) Article 243-O(b) of the Constitution of India is a bar for entertaining a writ petition under Article 226 of the Constitution against an order passed by the Returning Officer rejecting nomination paper and such provision would clearly be attracted whenever a writ petition is presented before a Court for its consideration; and

(iii) The law laid down in Vinod Pandurang Bharsakade (supra) represents the correct view of law; consequently, we hold that the decision in Smt. Mayaraju Ghavghave sng wpst-26 & 28.2021 (supra) and Sudhakar s/o Vitthal Misal (supra) do not lay down the correct law;

12. Since the petitioners are complaining infringement of their statutory right and have efficacious remedy of assailing the same by filing election petition, this Court is of the considered opinion that no case is made out for interfering in the matter.