Research › Browse › Judgment

Gujarat High Court · body

1992 DIGILAW 422 (GUJ)

LAJUBEN JERAMBHAI BHIL v. AHMEDABAD MUNICIPAL CORPORATION

1992-12-24

R.A.MEHTA

body1992
R. A. MEHTA, J. ( 1 ) THESE three petitions involve common questions and are therefore heard and decided by this common judgment. The petitioners desire to contest the reserved seat elections to Ahmedabad Municipal Corporation which are now scheduled to be held on January 24 1993 The petitioner in Special Civil Application No. 8509 of 1992 wanted to contest from ward No. 37 petitioner in Special Civil Application No. 8543 of 1992 wanted to contest from ward No. 24 and petitioner in Special Civil Application No. 8743 of 1992 wanted to contest from ward No. 11. They wanted to contest from the reserved seats for Scheduled Castes and Scheduled Tribes. However their nomination papers have not been accepted for the reserved seats and they have been accepted for the general seats. Being aggrieved by the rejection of their nomination papers for the reserved seats they have approached this Court. ( 2 ) IT is submitted that even though the election process has started the question of rejection of nomination papers is such a question that if the time permits the Court should interfere and put the things right at this stage because if the elections are allowed to be held without examining the question of validity of nomination for reserved seat the entire election not only for the reserved seats but of the entire ward for all the seats may have to be cancelled and that would be unnecessary and easily avoidable waste of public time money any energy. ( 3 ) ON behalf of the respondents it is submitted that once the election process has started on Court should interfere with the election process and if anyone has any grievance the same can be raised by way of election petition challenging the election of the concerned candidate and one of the grounds for challenging such election is improper rejection of the nomination papers. ( 4 ) IT is true that once the election process has started it should be allowed to be completed without any interference by the Court and ordinarily the remedy is by way of election petition challenging the election. ( 4 ) IT is true that once the election process has started it should be allowed to be completed without any interference by the Court and ordinarily the remedy is by way of election petition challenging the election. However the question of rejection of nomination papers is such a question that if it can be resolved in proper time without disturbing the election process the Court should try to see that it is resolved so that on that question the entire election not only for one seal but for all the seats of that ward are not put into Jeopardy and do not get set aside. However if it is not possible to redress this grievance in time the Court should refrain from interfering with the election process. ( 5 ) IN the present case the nomination papers wore to be filed from 19th to 21st November 1992. The same were to be scrutinised on 23rd and 24th November 1992. 28th November 1992 was the date for withdrawal of nomination papers and the poll was originally scheduled to be held on 27th December 1992 The first petition was filed on 19th November 1992 and notice was made returnable on the next dale and thereafter rule was issued and at the request of the learned Counsel for the respondents it was not heard on that day finally and it was made returnable on December 9 1992 In the other two matters also rule was made returnable accordingly. In the meanwhile due to the disturbed situation in Ahmedabad City the election came to be postponed and now they are scheduled to be hold on January 24 1993 Therefore there is till one month time. In these circumstances it is just and proper to examine and to see whether any case is made out of improper rejection of nomination papers for the reserved seals. In the cases reported in 22 GLR 1050 1986 GLH (UJ) 56 1987 (2) GLH (UJ) 10 and 23 GLR 397 Division Benches of this Court have taken a view that it would be open to the High Court to decide the question even at this stage. ( 6 ) IN all the three petitions it is not in dispute that all the three petitioners belong to the reserved category and sufficient proof thereof is on record. ( 6 ) IN all the three petitions it is not in dispute that all the three petitioners belong to the reserved category and sufficient proof thereof is on record. However the question raised by the respondents authorities is that at the time of scrutiny of nomination papers satisfactory proof thereof was not produced and therefore the nomination forms for reserved seats were not accepted and they were accepted for the general seats. ( 7 ) IN Special Civil Application No. 8509 of 1992 the petitioner had stated in her nomination that she belong to Bhil community which is Scheduled Tribe. Alongwith that she had produced evidence that her husband belongs to S. T. That proof is not disputed. She also produced similar certificate about her brother that he also belongs to S. T. and she also stated that she and his brother were both children of the same parents. However the petitioner nomination paper came to be rejected on the ground that she had failed to produce the proof of herself belonging to Scheduled Tribe and for that reliance was placed on the instruction para 6 (page 40 of the paper book) wherein it is provided that a candidate desiring to contest for the reserved seat for S. C. /s. T. shall produce a certificate for appropriate Government Officer that the candidate belongs to such a category. This instruction in the Circular is treated as if it barred consideration of any other satisfactory proof of the candidate belonging to reserved category For consideration of validity of nomination papers utmost liberal approach is required to be taken because the consequences of a technical or narrow approach might ultimately result into setting aside the election for the entire ward and number of candidates would be put to unnecessary great hardships. On the other hand even if there is a small doubt the nomination paper has to be accepted leaving the question to be decided after the election by appropriate authority. Once a person is allowed to contest the election there is no possiblity of the entire election being set aside without clear proof that the election result is materially affected by improper acceptance of the nomination paper. Therefore if there is any doubt benefit of doubt should be given in favour of acceptance of the nomination paper and the nomination paper should be rejected only in cllarest case. Therefore if there is any doubt benefit of doubt should be given in favour of acceptance of the nomination paper and the nomination paper should be rejected only in cllarest case. In the present case the nomination was supported by the evidence that not only the petitioners husband but her brother also belonged to the S. T. and on acceptance of this evidence inference could be readily drawn that the petitioner belongs to the same category. The petitioner had also stated that she and her brother were children of the same parents. That would have removed any furhter doubt. In this petition the petitioner has annexed a certificate regarding her caste also. In view of these facts it is clear that there was a clear and sufficient evidence to treat the petitioner belonging to reserved category and her nomination paper for the reserved seat ought to have been accepted. ( 8 ) IN Special Civil Application No. 8543 of 1992 the petitioner filed a nomination paper for contesting from the reserved seat on the ground that he belongs to Vankar communtiy However his nomination also came to be rejected on the ground that the caste certificate produced by him was not attested by a competent officer. The caste Certificate issued by Social Welfare Officer was a xerox copy and that xerox copy was attested by a Municipal Corporataor. It would be a hypertechnical approach to reject this nomination paper for the reserved seal on the ground that the caste certificate is not properly attested. The of ricer has to take a reasonable and prudent view of the matter and if a reasonable person on production of such certificate can reasonably come to the conclusion that the person belongs to that particular category he should accept the same. In the present case a xerox copy of the certificate issued by the competent officer is produced and it is also attested by the municipal corporator. In the circumstances this certificate should have been acted upon and any reasonable person will be satisfied that the candidate belongs to that particular category. In the present case a xerox copy of the certificate issued by the competent officer is produced and it is also attested by the municipal corporator. In the circumstances this certificate should have been acted upon and any reasonable person will be satisfied that the candidate belongs to that particular category. In a given case if it ultimately turns out that the certificate was not correct and such thing is proved in an election dispute the election of on candidate will be set aside but the risk involved in rejection of such clear evidence will be jeopardising the result of all the successful candidates of the entire ward. In this case also the nomination paper for the reserved seat ought to have been accepted. ( 9 ) IN Special Civil Application No. 8743 of 1992 the petitioner had produced a cetificate showing that the petitioner belongs to a reserved category issued by the Social Welfare Department. It was a xerox copy and it was not attested but when a xerox copy of a certificate is produced ordinarily it can be acted upon because it is true and faithful copy of the original and to reject it on the ground that it is not attested or it is not original would be taking a hypertechnical view of the matter. Therefore that nomination paper also ought to have been accepted. ( 10 ) IN this case the petitioner was sponsored as a candidate of a political party. On rejection of his nomination paper nomination of another candidate is accepted and he has been allotted the party symbol. The petitioner makes a categorical statement that he wants to contest from the reserved seat and he does not want party symbol and he does not want that his nomination should be sponsored by the party. In view of this clear and categorical statement his petition is entertained. ( 11 ) IN the result all the three petitions succeed and rule is made absolute by directing that the nomination papers of all the three candidates be accepted for the reserved seals in the concerned three wards. No order as to costs. Petitions Allowed. .