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2004 DIGILAW 602 (GAU)

Roland Sema v. State of Nagaland

2004-12-06

BROJENDRA PRASAD KATAKEY

body2004
Judgment : B.P. Katakey, J. 1. By this application the writ petitioner prays for a direction to hear and dispose of the Revision Petition filed by him under Sub-rule (6) of Rule 27 of the Nagaland Municipal Election Rule, 2003. The said Revision Petition was filed by the writ-petitioner against the order dated 23.11.2004 passed by the Returning Officer, Dimapur accepting the nomination of one Shri Vikheho Awomi in respect of Ward No. 7, election for which is going to be held on 8th December, 2004. 2. Heard Mr. B.N. Sarma, learned Counsel for the petitioner and also Mr. L.S. Jamir, learned Govt. Advocate on behalf of Respondents Nos. 1 and 3. 3. The Govt. of Nagaland has issued a Notification for election to the Dimapur Municipal council fixing 20th November, 2004 as the last date for filing nomination, 22nd November, 2004, the date for scrutiny of nomination, 25th November, 2004 as the date for withdrawal of candidature and 8.12.2004 as the date of election. The writ petitioner has filed his nomination as a candidate of Bharatiya Janata Party on 19.11.2004 for contesting from ward No. 7 (Sematilla) in the Dimapur Municipal Council Election. The writ petitioner raised an objection regarding the nomination paper filed by the said Shri Vikheho Awomi on the ground that he is not eligible to be a candidate in the said election. However, the said objection was not accepted by the Returning Officer and the Returning Officer vide order dated 23rd November, 2004 accepted the nomination paper of said Shri Vikheho Awomi. The writ petitioner thereafter filed a Revision Petition before the State Election Commissioner under Sub-rule (6) of Rule 27 of the Nagaland Municipal Election Rules, 2003, It appears from the statement made in the writ petition as well as the Annexures appended to the writ petition that election is going to be held on 8th December, 2004. 4. Section 43 of the Nagaland Municipal Act, 2001 provides that an election can be challenged by any unsuccessful candidate, on the grounds available, within 15 days from the date of publication of the result. For better appreciation, Section 43 of the Act is quoted below : 43. Disputes regarding election : (1) No election of a member of municipal council shall be called in question except by an election petition presented to the Election Tribunal, appointed by the Govt. For better appreciation, Section 43 of the Act is quoted below : 43. Disputes regarding election : (1) No election of a member of municipal council shall be called in question except by an election petition presented to the Election Tribunal, appointed by the Govt. in this behalf, within fifteen days of the date of the publication of the result of election under Section 42 (2) An election petition calling in question any such election may be presented under any of the grounds specified in Section 45 by any candidate at such election by an elector of the ward concerned or any member. (3) A petitioner shall join as respondents to his petition all the candidates at the election. (4) An election petition - (a) shall contain a concise statement of the material facts on which the petitioner relies. (b) shall, with sufficient particular, set forth the ground or grounds on which the election is called in question, and (c) shall be signed by the petitioner and verified in the manner for verification of pleadings in the spirit of the code of Civil Procedure. 1908. 5. It is a settled position of law that the Court should not interfere with the process of election which begins on the date when the Notification for such election is issued till the termination of the said process i.e., the declaration of the result. In the instant case, the election Notification has already been issued and in fact the date of election has been fixed on 8th of December, 2004. This Court, therefore, not inclined to pass any order directing the Government to dispose of the Revision Petition filed by the writ petition under Sub-rule (6) of Rule 27 of the 2003 Rules which will have the effect of postponing of election which is going to be held on 8.12.2004. Moreover, the improper acceptance of nomination paper of a returned candidate is the ground available to an unsuccessful candidate which can only be challenged by way of an election petition filed under Section 43 of the Act. Therefore, the relief sought for by the writ petitioner in the writ petition cannot be granted. 6. Mr. L.S. Jamir, learned Govt. Moreover, the improper acceptance of nomination paper of a returned candidate is the ground available to an unsuccessful candidate which can only be challenged by way of an election petition filed under Section 43 of the Act. Therefore, the relief sought for by the writ petitioner in the writ petition cannot be granted. 6. Mr. L.S. Jamir, learned Govt. Advocate appearing on behalf of respondents 1 and 3 has made a statement before this Court that the revision filed by the writ petitioner could not be disposed of because of the fact that the Deputy Commissioner, Dimapur who is to dispose of the said revision is on leave and the State Government is making arrangement for authorising an Officer to consider and dispose of the said revision petition and in fact the State Government is issuing a Notification today authorising an Officer to hear and dispose of the said revision petition, which, according to Mr. Jamir, the learned Govt. Advocate, would obviously be considered and disposed of by the authority so appointed. However, this Court is not passing any direction to that effect. This disposes of the writ petition.