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2004 DIGILAW 176 (GUJ)

RAJEEBEN KALIDAS SENMA v. ELECTION OFFICER

2004-03-15

D.N.PATEL, J.N.BHATT

body2004
J. N. BHATT, J. ( 1 ) THE only question, which is placed in focus, in this petition, is as to whether this Court, in exercise of its power under Article 226 of the Constitution of India, can examine the merits of the disputed question of rejection of nomination form, to which our unambiguous, evident and positive reply is in the negative, after having taken into consideration the entire factual profile as well as the relevant proposition of law and after consideration of the submissions advanced before us and also bearing in mind that the petitioner can raise this issue after the elections are over by way of Election Petition, wherein full-fledged inquiry could be gone into for the purpose of finding out truth about the disputed question. ( 2 ) DURING the course of hearing, Mr. P. R Nanavati, learned Advocate appearing for the Returning Officer, Kutch, has placed reliance on a decision of the Constitutional Division Bench of the Honble Apex Court in N. P. Ponuuswami Vs. Returning Officer, Namakkal Constituency, Namakkal, Salem Dist. and Ors. , AIR 1952 SC 64 , wherein it has been held that in view of the provisions of Article 329 (b) of the Constitution of India, the expression "election" has been used in Part XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. The use of expression, "conduct of election" in Article 324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part XV of Article 229 (b ). Thus, it has been clearly held that the expression, "election" may be taken to embrace the whole procedure, which consists of several stages and embraces many steps, whereby the "elected member" is returned, whether or not, it be found necessary to take poll. It is not used in a narrow sense. It is, also, further held that law does not contemplate two attacks on matters connected with election; on one hand, under Article 226, during the process of election, and on the other, when it is completed by Election Petition, under Representation of the People Act and that the rejection or acceptance of nomination paper cannot be called in question under Article 226. ( 3 ) SECTION 100 of the Representation of the People Act, 1951 deals with the grounds for declaring the elections to be void. In clause (c) of sub-section (1) of Section 100, it is clearly prescribed statutorily that any nomination that has been improperly rejected will be a ground for declaring election to be void. It is a settled proposition of law that ordinarily Courts, much less the Writ Courts, will be at lot at the eleventh hour to intercept the process of election, mainly, on the ground that the election process, once commenced, ordinarily, should not be prevented by judicial fiat and secondly, there is an alternative efficacious remedy available, wherein such questions can be raised by filing an Election Petition and rejection of nomination improperly is one of the grounds for declaring election to be void. ( 4 ) ON behalf of the Returning Officer, reliance is placed on the decision of the Honble Apex Court, rendered in Election Commission of India through Secretary Vs. Ashok Kumar and Ors. , AIR 2000 SC 2977 , wherein a Bench of three Honble Judges of the Supreme Court has categorically propounded and held, considering the provisions of Articles 329 and 324 of the Constitution of India as well as Rule 59-A of the Conduct of Election Rules (1961), that in election matters, there is a bar to interference by the Courts. Our attention is also invited to a decision of the Honble Supreme Court in decision rendered in Lila Krishna Vs. Mani Ram Godara and Ors. Our attention is also invited to a decision of the Honble Supreme Court in decision rendered in Lila Krishna Vs. Mani Ram Godara and Ors. , AIR 1985 SC 1073 , on judicial scrutiny by the Apex Court, virtually similar to the case on hand, wherein, after taking into consideration the propositions and provisions of Sections 33 (4) Proviso, 36 (4), 100 (1) (c) of the Representation of the People Act, 1951, the Constitutional Bench held that where people interested in two candidates for the election went away from the place of scrutiny of nomination paper before the scrutiny was done and the nomination papers of the said two candidates were rejected by the Returning Officer being defective as the serial number of the proposer given in the nominal paper did not tally with the serial number mentioned in the voters list and he was not in a position to correlate and identify the proposer, the rejection of the nomination papers by the Returning Officer could not be said to be illegal. The proposition propounded in this decision is directly and sqarely attracted to the facts of the present case. ( 5 ) IN the petition on had, the main allegation of the petitioner is that the Returning Officer, while scrutiny was being made of the nomination papers, did not render assistance and help to the candidate, namely, the petitioner, in identifying and correcting the serial numbers of the nominations of the proposers from Electoral List. The petitioner had filed two nomination forms for contesting election of Lok Sabha which is scheduled to be held on 20-04-2004 from the Kutch Constituency in Gujarat State. It is the case of the petitioner that the nomination papers were filed on 31-03-2004 and both the nomination forms were tendered and accepted by the Returning Officer. After verifying all the documents and the records and after verifying the details, however, the Returning Officer passed an Order dated 01-04-2004 rejecting both the nomination forms of the petitioner. ( 6 ) IT may be noted, at this stage, that the petitioner had filed two nomination forms for election from Kutch Constituency. The petitioners version is that the President of Lok Janshakti Party gave her the mandate to contest election of Lok Sabha from Kutch Constituency. ( 6 ) IT may be noted, at this stage, that the petitioner had filed two nomination forms for election from Kutch Constituency. The petitioners version is that the President of Lok Janshakti Party gave her the mandate to contest election of Lok Sabha from Kutch Constituency. One nomination paper came to be rejected by the Returning Officer as there was no sufficient compliance of law for supporting the candidature of a party, which is registered but not recognised by the State of Gujarat, whereas the second nomination came to be rejected on the same day, which was filed by the petitioner independently and not as a partys candidate, for the reason that out of ten persons, who had signed the proposal form of the petitioner, persons at Sr. Nos. 2,5 and 8 did not find mention or figure in the Voters List at the said serial numbers. The vehement contention advanced on behalf of the petitioner by Mr. M. K. Patel, learned Advocate, has been that had the Returning Officer taken sufficient care and assisted the petitioner, there would not have been rejection of the nomination. It cannot be said to be an omission or commission arising out of a statutory obligation. Otherwise, also, merely because the Returning Officer has not rendered the assistance and help to one of the candidates in verifying the nomination form cannot be said to be an exercise in rejecting such nomination form illegal or unjust, as this question has a direct answer from the proposition of law propounded by the Honble Apex Court in the decision rendered in Lila Krishna (supra ). ( 7 ) UPON correct appraisal and assessment of the factual information available on record, factually and legally, the plea and contention advanced by the petitioner against the rejection of the nomination forms to contest the Lok Sabha Election from Kutch Constituency in the ensuing General Elections to the Lok Sabha to be held on 20-04-2004 is found to be without any merits and substance requiring no interference, as a result of which the petition shall stand dismissed, however, without any order as to costs. Notice discharged. .