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2014 DIGILAW 1502 (MP)

Kitabi Sri Yadav v. State of M. P.

2014-11-20

SUJOY PAUL

body2014
ORDER 1. Heard. 2. The petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution, with a prayer to quash the order, Annexure P-1, whereby petitioner’s nomination is rejected. The petitioner is resident of Ward No.7 and registered as voter of said ward at serial No. 362 of the voter list. The petitioner filed her nomination paper for the office of councilor for Ward No.5 of Nagar Parishad Akoda. The said nomination paper was rejected on the ground that on perusal of nomination form, it is gathered that she has shown her to be resident of Ward No.5, which is factually incorrect. 3. Learned counsel for the petitioner submits that admittedly, the petitioner inadvertently committed a clerical error while mentioning Ward No.5 in the form, Annexure P-1. However, in the affidavit and other documents filed along with form, she has rightly mentioned the name of ward, i.e., Ward No.7. Thus, the clerical error should have been ignored and form should not have been rejected on this ground. Reliance is placed on rule 28 (4) of M.P. Nagar Palika Nirvachan Niyam, 1994 (hereinafter called as “Rules”). Thus, the singular contention of Shri Padhariya is that the returning officer has committed an error in rejecting the nomination on a clerical error and such error was not substantial in nature. 4. Prayer is opposed by Mrs. Ami Prabal. She submits that the petitioner has a remedy to prefer an election petition under the Act. 5. During the course of argument, learned counsel for the parties fairly admitted that election notification has already been issued on 2.11.2014. It is also admitted by the parties that the last date of submission of nomination form is over. 6. I have heard learned counsel for the parties and perused the record. Rule 28(4) of the Rules reads as under :- “28(4) - The Returning Officer shall not reject any nomination paper on the ground of their clerical or printing error or any defect which is not of a substantial nature.” 7. No doubt, it is clear from the rule that nomination cannot be rejected on clerical error. However, it cannot be forgotten that the election has already been declared and the election process is in full swing. The question is whether at this stage, this petition should be entertained and an interim relief could be passed. No doubt, it is clear from the rule that nomination cannot be rejected on clerical error. However, it cannot be forgotten that the election has already been declared and the election process is in full swing. The question is whether at this stage, this petition should be entertained and an interim relief could be passed. In my opinion, the apex Court in catena of judgments has held that “if the election is imminent or well under way, the Court should not intervene to stop the election process. If it is allowed to be done, no election will ever take place because someone or the other will always find some excuse to move the Court and stall the elections.” [See, (1996) 6 SCC 309 (Anugrah Narain Singh and another v. State of UP and others)]. In the same judgment, the apex Court further held that “if holding of elections is allowed to be stalled on the complaint of few individuals, then grave injustice will be done to crores of other voters who have a right to elect their representatives to the local bodies.” 8. Section 20 of M.P. Municipalities Act, 1961 deals with election petition. The aggrieved party can invoke this provision to challenge the election. Section 22 (1) (c) of the Act reads as under :- “22. Grounds for declaring election or nomination to be void.- (1) Subject to the provisions of subsection (2) if the Judge is of the opinion — (a) xxx xxx xxx (b) xxx xxx xxx (c) that any nomination paper has been improperly rejected.” 9. A combined reading of section 20 and 22 of the Act makes it clear that the petitioner has a remedy to challenge the ultimate election on the ground of improper rejection of his nomination paper. Thus, the petitioner is not remediless. 10. The apex Court in catena of judgments has held that once election is in full swing, no interference should be made by the Courts. Admittedly the petitioner has a remedy to file an election petition after the elections. The Punjab and Haryana High Court in Civil Writ Petition No.4012/2011 (Dr. Harjot Kamal Singh v. Union of India) has held as under :- “The consistent string of authorities is only that after the election gets under way through a notification, it cannot be stalled and the actual election of various office-bearers could be challenged only through election petitions.” 11. The Punjab and Haryana High Court in Civil Writ Petition No.4012/2011 (Dr. Harjot Kamal Singh v. Union of India) has held as under :- “The consistent string of authorities is only that after the election gets under way through a notification, it cannot be stalled and the actual election of various office-bearers could be challenged only through election petitions.” 11. The Supreme Court in (2001) 8 SCC 509 (Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another) in para 12 held as under :- “12. In view of our finding that preparation of the electoral roll being an intermediate stage in the process of election of the Managing Committee of a specified society and the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll.” 12. Since the election is in full swing, I am not inclined to entertain this petition. Petition is dismissed by reserving liberty to the petitioner to avail the said remedy. It is made clear that this Court has not expressed any opinion on merits.