Gaurav Malik S/O Shri Bhagwan Das ... vs Rajasthan State Election ...
2021 Latest Caselaw 500 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                S.B. Civil Writ Petition No.679/2021

Gaurav Malik S/o Shri Bhagwan Das Malik, aged about 36 years,
Resident of Krishn Govind Colony, Keshoraipatan, Distt. Bundi,
Rajasthan.
                                                                   ----Petitioner
                                   Versus
1.     Rajasthan State Election Commission, Through Secretary,
       2Nd Floor, Development Block, Secretariat, Jaipur - 302
       005
2.     Returning Officer (Municipality), S.d.m., Keshoraipatan,
       Distt. Bundi, Rajasthan.
                                                                ----Respondents

For Petitioner(s) : Mr.Pradeep Kumar Chaudhary, Adv.

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

Order

20/01/2021

The instant writ petition has been filed by the petitioner

challenging the order dated 16.01.2021 whereby nomination of

the petitioner for contesting the Municipal Election was rejected by

the Returning Officer. The petitioner has also prayed that direction

may be issued to the Official respondents to allow the nomination

of the petitioner for contesting the Municipal Elections for

Keshoraipatan, Bundi, scheduled to be held on 28.01.2021.

This Court asked learned counsel for the petitioner

Mr.Pradeep Kumar Chaudhary with respect to maintainability of

the present writ petition before this Court challenging the order of

rejecting the candidature of the petitioner/nomination paper.

(2 of 4) [CW-679/2021]

Learned counsel for the petitioner submitted that the

Returning Officer has acted arbitrarily in rejecting the candidature

of the petitioner for contesting the election.

Learned counsel submitted that on bare reading of the

reason of rejection of nomination paper of the petitioner, it is

apparent that the petitioner has been rendered ineligible to

contest the election only on account of registration of a case

against him under Section 3(1) (r) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter

'the Act of 1989').

Learned counsel submitted that the requirement of law

is that if any person is charged with offences where minimum

punishment is 5 years then such person cannot be eligible to

contest election.

Learned counsel submitted that under provision

contained in Section 3(1)(r) of the Act of 1989, the punishment is

minimum 6 months and maximum can extend upto 5 years and it

cannot be said that the petitioner can be rendered ineligible on

that count.

Learned counsel further submitted that if the Returning

Officer acts arbitrarily ignoring the minimum requirement to see

eligibility of the candidate and on whims and fancies, he rejects

the nomination paper, the petitioner cannot be rendered

remediless or he cannot be asked to avail the remedy which is

provided under the Municipalities Act by filing Election Petition

challenging the rejection of nomination paper.

Learned counsel submitted that the Apex Court in the

case of Mohinder Singh Gill & Anr. vs. The Chief Election

Commissioner, New Delhi & Ors. reported in [AIR 1978 SC

(3 of 4) [CW-679/2021]

851] has found out a way for citizens to approach the High Court

to facilitate the election process and if the prayer of the candidate

is not to hold the election, the High Court can always interfere by

exercising its power under Article 226 of the Constitution of India.

This Court finds that the judgment passed by the Apex

Court in the case of N.P. Ponnuswami vs. The Returning

Officer, Namakkal Constituency & Ors. reported in [AIR 1952

SC 64] had considered the issue with regard to availability of writ

jurisdiction in the matter of rejection of nomination paper of a

candidate in election and writ has not been hold to be

maintainable.

This Court finds that recently the Bombay High Court in

its Full Bench judgment i.e. Writ Petition (ST.) No.26/2021

Karmaveer Tulshiram Autade & Ors. vs. The State Election

Commission & Ors. decided vide order dated 13.01.2021, has

also come to conclusion that rejection of nomination paper cannot

be challenged by way of writ petition. The Bombay High Court has

considered the judgment passed by the Apex Court in the case of

N.P. Ponnuswami (supra), Mohinder Singh Gill (supra) and

Election Commission of India through Secretary Vs. Ashok

Kumar & Ors. reported in [(2000)8 SCC 216] and has finally

come to conclusion that the remedy available to a candidate

against rejection of nomination paper, is to take appropriate

remedy by way of election petition & not by filing a writ petition.

This Court also finds that the Madras High Court in the

judgment dated 02.04.2019 passed in the case of J.

Shanmugapriyadharsini vs. Chief Electoral Officer & Ors.

(WP No.9972/2019) has also considered the similar issue and

has come to conclusion that the remedy available to a candidate in

(4 of 4) [CW-679/2021]

the election against the rejection of nomination paper, is not by

way of writ petition under Article 226 of the Constitution of India.

This Court finds that the writ petition filed by the

petitioner cannot be entertained by this Court and accordingly, the

same is dismissed.

It goes without saying that if the petitioner has remedy

available under the law, he is always free to avail the same.

(ASHOK KUMAR GAUR), J Himanshu Soni/95/Ramesh Vaishnav

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