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2011 DIGILAW 145 (HP)

Hari Nand v. State of H. P.

2011-01-05

KURIAN JOSEPH, V.K.AHUJA

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JUDGMENT Kurian Joseph, J. The question raised in this writ petition is whether the Returning Officer can review his own order of acceptance of the nomination? 2. The writ petition is filed with the following prayers: “(a) That this Hon’ble Court may be pleased to issue a writ of Certiorari quashing and setting aside rejection of the nomination paper of the petitioner by Respondent No.3 dated 17.12.2010 as mentioned in Annexure P4 i.e. the nomination from of the petitioner for contenting election of office bearer of Naggar Panchayat Chopal Tehsil Chopal District Shimla Himachal Pradesh. This Hon’ble Court may also be pleased to quash clarification given by Respondent No.4 dated 17.12.2010 Annexure P 7 being illegal, against the provisions of Section 16 of H.P Municipal Act, 1994 and law of the land declared by the Hon’ble Supreme Court of India. (b) This Hon’ ble Court may be pleased issue a writ of Mandamus directing the respondents State to hold elections for Ward No.1 Naggar Panchayat Chopal, Tehsil Chopal, District, Shimlal as per Schedule i.e. election programme issued by respondent No.4 vide notification dated 4.12.2010 on 3rd of January, 2011 by treating the petitioner as a contesting candidate for being elected as office bearer from Ward No.1 Naggar Panchayat Chopal, Tehsil Chopal, District Shimla, Himachal Pradesh with all consequential effects. ( c ) This Hon’ble may kindly be pleased to issue a writ of mandamus directing the respondents not to issue any notification declaring respondent No.4 as elected member from Ward No.1 Naggar Panchayat Chopal, Tehsil Chopal District Shimla and to produce all the relevant records of the case and pay to the petitioner cost of the petition.” 3. On 22nd December, 2010, this Court passed the following orders :- “Notice dasti to the 5th respondent. Heard, learned counsel for the petitioner and the learned standing counsel for the State Election Commission. It is seen from the records that the nomination of the petitioner for contesting election to Nagar Panchayat Chopal in Ward No. 1 had already been accepted by the Returning Officer on the date of scrutiny, namely 16.12.2010. However, on the next day, the same is rejected on the basis of a clarification by the State Election Commission. That clarification by the State Election Commission is issued with reference to an objection filed by the th respondent that the petitioner is a voter in Gram Panchayat also. However, on the next day, the same is rejected on the basis of a clarification by the State Election Commission. That clarification by the State Election Commission is issued with reference to an objection filed by the th respondent that the petitioner is a voter in Gram Panchayat also. Though several contentions have been taken, for the purpose of the order, we propose to pass at this stage, it is not necessary for us to go into all those contentions. The crucial question is whether once the nomination paper has been accepted, the same can be rejected. The statute does not confer any such power on the Returning Officer for rejecting the nomination which has already been accepted once. The scheme of the scrutiny is that if any objection is to be considered, the same is to be raised at the time of scrutiny and on scrutiny once it is accepted, there is no question of reviewing that decision on the basis of objection apparently filed thereafter. Though normally the petitioner is to be relegated to the remedy of election petition, in view of the ex-facie illegal and arbitrary exercise of power by the Returning Officer, this Court is constrained to invoke its extraordinary jurisdiction to meet the ends of justice. In that view of the matter, there will be a direction to respondents No. 2 to 4 to permit the petitioner to contest the election in Ward No. 1 of Chopal Nagar Gram Panchayat. However, we make it clear that the same shall be subject to the result of the Writ Petition. Post on 5.1.2011, for further orders.” 4. We are informed that the petitioner has also participated in the election process and won the election also. Therefore, the writ petition is disposed of making the interim order absolute and in terms thereof. However, we make it clear that the judgment shall not stand in the way of any other grievance, being pursued in a properly constituted Election Petition. 5. The writ petition is disposed of, so also the pending applications, if any.