PINTO VOILET MARIENE v. CANTONMENT BOARD, ITEIGAUM
1992-04-07
body1992
DigiLaw.ai
P. K. SHYAMSUNDAR, J. ( 1 ) THE petitioner is admittedly the resident of the cantonment board (herein after referred to as 'the board') which was scheduled to go to the polls to constitute an administration committee for the board. The petitioner opted to enter the fray and duly filed her nomination before the assigning officer who was assigned the task of holding the election. But unfortunately for this lady her nomination paper was rejected by the r. o. by an order dated 30-12-1991, a copy of which is produced at Annexure -d. Aggrieved by the rejection of her nomination paper, the petitioner has preferred this writ petition assailing (sic) the action of the r. o. characterising it as wholly arbitrary, totally indefensible palpably erroneous and asking me to interfere by striking down the order of the returning officer at Annexure-D and follow it up by a fiat issued to the r. o. to entertain the nomination paper of the petitioner so that she could also contest the election which although scheduled to be held on 31st of january, 1992 has since been stayed by this court and hereafter will have to be rescheduled irrespective of the outcome of this writ petition. ( 2 ) I have heard learned counsel for the petitioner Sri Visweswara and learned counsel Sri Koti who appears for the board as well as the r. o. I have also heard the learned senior counsel Sri H. B. Datar who appears for respondent-5. ( 3 ) THE point of Mr. Visweswara is that the r. o. has made a mountain out of amole hill in that instead of using an abbreviated form, the petitioner described her husband's name in her nomination paper in an expanded form the r. o. took exception to this as the name of petitioner's husband in the electoral roll is found in the abbreviated form. According to learned counsel. The r. o. instead of giving an opportunity to the petitioner to correct this discrepancy, chose to reject the petitioners nomination paper on this very flimsy and inconsequential ground of wrong description be (sic) of her husband's name in her nomination paper. ( 4 ) RESPONDENTS four and six have remained absent despite service of notice. Respondent-5 as stated earlier, is represented by senior counsel Sri Datar, who took very strong objection to the maintainability of the writ petition itself.
( 4 ) RESPONDENTS four and six have remained absent despite service of notice. Respondent-5 as stated earlier, is represented by senior counsel Sri Datar, who took very strong objection to the maintainability of the writ petition itself. ( 5 ) ACCORDING to senior counsel Sri Datar whatever be the decision of the r. o. inrejecting the nomination paper the jurisdiction of this court under Article 226 of the Constitution cannot be invoked since there is an effective alternative remedy avail- able to the aggrieved party in the form of an election dispute which can be raised before the local district judge. Interestingly one of the grounds adumberated in Rule 47 (a) (ii) for declaring an election as void is 'the improper acceptance or refusal of a nomination paper'. The position, therefore, is acceptance or rejection of nomination paper canbe specifically challenged in an election petition filed before the local district judge. Rule 42 makes it very clear that no election shall be called in question except by an election petition presented in accordancewitii the rules. Therefore, this is a case I n which the rules provide for an efficacious alternative remedy geared to investigate specifically a complaint like the one before me viz. , the rejection of the nomination paper which is said to be not merely improper but wholly unwarranted. ( 6 ) THIS court in Maruthi v State of Karnataka, 1990 (3) kar. L. j. 614: ILR 1990 kamataka 1378 considered a priori the question whether a writ petition would lie against an order of the r. o. rejecting a nomination paper. That was a matter arising under the Karnataka Municipalities Act, 1964. Suffice it to state that the controversy therein also arose in connection with an election to the self-governing body like the 'board' in this case. The bench in answering that question, held:"as an alternative and effective remedy is available and as the law provides for resolution of the dispute relating to election by a special tribunal and as the policy of law is to have the disputes about special rights created by the enactment decided as speedily as may be by a special tribunal, it is not just and appropriate to exercise the jurisdiction under articles 226 or 227 of the Constitution and interfere with the election process which has already commenced.
"in recording that conclusion their lordships considered in great detail various decisions of the Supreme Court and this court as well. The considered opinion of the bench was that it was not just and appropriate to exercise jurisdiction under articles 226 and 227 of theconstitution interfere with the election process which has already commenced. After. Maruthi's case another bench of this court in l. Ramakrishnappa v Presiding officer, ILR 1991 Karnataka 4421 while no doubt reiterating the principle laid downby matwhi's case ventured further in expounding the theory that principle of non-interference is not to be treated as negating the power of the court to interfere in an election matter under articles 226 and 227 of the Constitution and this court 'could' and 'may' interfere in exceptional cases. We have also another decision of this court again by a bench in B. Gummallappa v State of Karnataka, ILR 1991 kar. 577 wherein their lordships appear to have taken the view that a writ petition would be an apposite remedy even in an election matter. The resulting position is we have three different distinct decisions on the same topic viz. , interference under articles 226 and 227 of the Constitution in an election matter and, therefore, the matter appears to have been referred to a full bench for further consideration in K. G. Anjundaswamy v Assistant registrar of co-operative societies, 1992 (2) kar. L. J. 262: ILR 1992 Karnataka 979. Therein speaking for the bench his lordship the chief Justice succinctly pointed out that in all cases where a specific remedy by way of election petition is available normally that remedy should be resorted to. His lordship then went on to consider the alleged divergent opinion expressed in maruthi's case and gurumallappa's case. Reconciling the two together his lordship said: "there is really no divergence of opinion between the judgments in maruthi's case and in gurumallapa 's case. Maruthi's case lays down the law as set out herein. Gurumallapa's case is an illustration of the principle that the high court has the power to interfere in election disputes and shall exercise that power only in the most exceptional cases.
Maruthi's case lays down the law as set out herein. Gurumallapa's case is an illustration of the principle that the high court has the power to interfere in election disputes and shall exercise that power only in the most exceptional cases. The observation of the division bench that the provision for filing an election petition was not an efficacious remedy, and a writ in the nature of mandamus to hold a fresh election could be issued must be read in the light of those extraordinary circumstances. All that was meant to be conveyed was that in those extraordinary circumstances the provision for filing an election petition would not do justice. " the end result of all these three decisions and identifying their quintessence would lead to the conclusion that at all events and in normal circumstances with the statute providing for a resolution of an election controversy by an appropriately constituted election tribunal, all grievances pertaining to elections must be directed to the special forum constituted to resolve such disputes under the statute. That would be the normal run-up of things. But a case may arise and a situation may arise in which the normal remedy of preferring an election petition, though available, may not be efficacious in which event it may be necessary to interfere in such a controversy under articles 226 and 227 of the Constitution provided the case in question proves to be an exception to the normal Rule referred to above and there was no delay in approaching the court for relief. Senior counsel Sri H. B. Dalar, in fact wanted me to really state that the decision in ramakrishnappa 's case was clearly per incuriam since it really ran counter to the pronouncement of the Supreme Court in S. T. Mulliusami v K. Natarajan, AIR 1988 SC 616 . Counsel repeatedly invited my attention to one particular passage in that decision at para 9 which reads:"after the decision of this court in N. P. Ponnuswami v Returning Officer, namakkal constituency, AIR 1952 SC 64 there is hardly any room for courts to entertain applications under Article 226 of the Constitution in matters relating to elections.
Counsel repeatedly invited my attention to one particular passage in that decision at para 9 which reads:"after the decision of this court in N. P. Ponnuswami v Returning Officer, namakkal constituency, AIR 1952 SC 64 there is hardly any room for courts to entertain applications under Article 226 of the Constitution in matters relating to elections. "sri Datar wanted me to say, on the aforesaid dicta of the Supreme Court, that their lordships in laying down certain exceptions to the general Rule in ramakrishnappa's case, clearly overlooked the binding precedent of Supreme Court in muthusami's case referred to supra. Counsel also urged that the decision in maruihi's case having been rendered relying principally on the decision of the Supreme Court, in muthusami's case it was not open to a bench of this court to whittle down the authority of the decision in maruihi's case and more so the decision of the Supreme Court in muthuswami's case. He invited my attention to another decision of the Supreme Court spelling out the requirements to be observed by judges in a multi-tired court. However, it does seem to me that it is not necessary to go into these nice questions of propriety. At the moment, this controversy touching a pre-election dispute could be given a quietus in the light of the pronouncement of the full bench in nanjundaswamy's case referred to supra. ( 7 ) THIS court in nanjundaswamy's case reconciled the divergent views expressed in the earlier two decisions of this court by holding that normally speaking the election controversy should be resolved by the forum available under the statute and (sic) in normal course an election process once begun should not be interfcrcd with. But where the situation is so overwrought as to compel the interference of this court under Article 226, the power to interfere is always available to this court. The question herein is whether in the instant case it could be said such interference is warranted by the very nature of things as otherwise Justice would not be done. ( 8 ) TO go into the factual aspects of the case the r. o. found himself in the (sic) ofa dilema with the electoral roll describing the petitioner as mrs. Pinto voilet m. Whereas her description in the nomination paper is as 'mrs. Violet mariene'.
( 8 ) TO go into the factual aspects of the case the r. o. found himself in the (sic) ofa dilema with the electoral roll describing the petitioner as mrs. Pinto voilet m. Whereas her description in the nomination paper is as 'mrs. Violet mariene'. One of the columns in the nomination paper requires the name of the husband to be mentioned and in that column the information furnished is 'mariene m. Pinto'. Suffice is to nole that if that information was not furnished the nomination paper could have been rejected as incomplete. Now that lue information was furnished the r. o. compared it with the name mentioned in the electoral roll. In si. No. 682 the name that figures is Mr. Pinto mariene whereas the name of the petitioner figures at si. No. 690 of the electoral roll. The petitioner tried to explain the discrepancy that had arisen in the description of her name in the nomination paper by pointing out that she had merely expanded the abbreviated form 'm' into mariane in the nomination paper, whereas in the electoral roll her name is shown as 'violet m1. All that I can say is the r. o. could have accepted that explanation and accepted the nomination paper as well, but the r. o. chose to reject her nomination paper. The question is whether the r. o. had committed so grave an error or acted so arbitrarily as to invite the reproach of this court and its ready interference in the exercise of its jurisdiction under articles 226 and 227 of the constitution. ( 9 ) I am convinced that the error committed by the r. o. is not so erroneous as tobe termed as a himalayan blunder and I do not think his order in rejecting the nomination paper on the ground that there is discrepancy between the name of the petitioner as found in the nomination paper and her name as found in the electoral roll, could be said to be either arbitrary or capricious so as to warrant interference at the hands of this court treating the case as an exceptional one as adumbcrated in ramakrishnappa 's case referred to supra. ( 10 ) F must also touch upon another argument of Mr.
( 10 ) F must also touch upon another argument of Mr. Viswcswara who suggested that in terms of Rule 20 the r. o. should have called upon the petitioner to make the necessary changes in the nomination paper so as to bring it in conformity wilh the description in the electoral roll. Suffice it to notice that she was beard in the matter and during the course of the enquiry she ventured an explanation justifying her description in the nomination paper. Probably if she had asked for a chance to rectify the description in the nomination paper the r. o. may have granted it. Proviso to Rule 20 on which counsel relies is attracted only to defects found in the nomination paper so far as they relate to the symbols and not otherwise. It would be useful to extract the proviso to Rule 20. "provided furtlier that any objections raised merely in regard to failure to complete, or defect in completing the declaration as to symbols in a nomination paper shall not be considered, as a ground for rejecting the nomination paper and when any such objection being raised the returning officer shall cause the nomination paper to be completed or defect rectified by the candidate who was filed or on whose behalf the nomination paper has been filed. " (emphasis supplied) herein the defect in the nomination paper related to the description of the name of the petitioner and therefore Rule 20 could have no bearing on the facts of this case. 1 mn not saying it could not have been done but I am pointing out that if ihc argument is that Rule 20 cast a duly on (the returning officer to invite a candidate to reconcile the discrepancy in the description of her/his name, the Rule does not in any manner assist the petitioner. No other point is raised in this petition for my consideration. ( 11 ) THEREFORE, this writ petition, for the reasons stated above fails and is rejected,no costs. --- *** --- .