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Rajasthan High Court · body

2014 DIGILAW 1879 (RAJ)

YASH MIDDHA v. STATE OF RAJASTHAN

2014-11-21

SANGEET LODHA

body2014
ORDER 1. This writ petition is directed against order dated 12.11.14 of the Returning Officer rejecting the nomination paper filed by the petitioner for contesting the election as Member from Ward No.21 of Municipal Council, Sri Ganganagar, on the ground that he is disqualified to contest the election by virtue of provisions of Section 24(iii) of Rajasthan Municipalities Act, 2009 (for short “the Act”). 2. The relevant facts are that the State Election Commission, Rajasthan, issued notification dated 7.11.14 for intended elections of various municipalities including the Municipal Council, Sri Ganganagar. As per the programme notified, the nominations were to be filed during the period from 7.11.14 to 11.11.14. The date for scrutiny of the nomination was fixed as 12.11.14. The last date for withdrawal of the candidature was fixed as 14.11.14 and the date and hours of polls, if necessary, is fixed as 22.11.14. 3. The petitioner being aspirant to contest the election as Member from Ward No.21 of Municipal Council, Sri Ganganagar filed his nomination form in the prescribed proforma alongwith the requisite declaration/undertaking and affidavit on 10.11.14. On the date fixed for scrutiny of the nomination papers, the Returning Officer examined the nomination papers. The petitioner's nomination paper has been rejected by the Returning Officer on the ground that since cognizance has been taken and charges have been framed by criminal court of competent jurisdiction against the petitioner for offences under Section 452 & 323/34 IPC, he is disqualified to contest the election by virtue of provisions of Section 24(iii) of the Act. 4. According to the petitioner in the declaration attached to the nomination form, it was candidly disclosed that a criminal case for offences under Section 452, 323/34 IPC has been registered against him and cognizance has been taken by the court of Chief Judicial Magistrate, Sri Ganganagar. It is submitted that the nomination form was accompanied by order dated 30.9.14 passed by the court taking cognizance and the fact regarding cognizance having been taken was also mentioned in the affidavit filed alongwith the nomination form. It is submitted that though the cognizance has been taken by the criminal court of competent jurisdiction for commission of offences under Section 452, 323/34 IPC but no charges have been framed against the petitioner till this date and therefore, the provisions of Section 24(iii) of the Act are not attracted in the matter. It is submitted that though the cognizance has been taken by the criminal court of competent jurisdiction for commission of offences under Section 452, 323/34 IPC but no charges have been framed against the petitioner till this date and therefore, the provisions of Section 24(iii) of the Act are not attracted in the matter. It is stated that though the order dated 30.9.14 of taking cognizance was available on record, the Returning Officer acting in arbitrary manner, has rejected the nomination form holding the petitioner disqualified for contesting election. It is submitted that having come to know about the rejection of the nomination paper, the petitioner made a detailed representation to the Returning Officer at 4.45 p.m. on 12.11.14, but to no avail. Hence, this petition. 5. In response to the notice issued, an affidavit has been filed on behalf of the Returning Officer taking the stand that the petitioner submitted his two nomination papers; one on 10.11.14 and another on 11.11.14 wherein it was specifically mentioned that the cognizance has been taken and charges have been framed by the court against him for offences under Section 452, 323 and 34 IPC. It is submitted that the stand taken by the petitioner that the order dated 30.9.14 passed by the trial court was submitted alongwith the nomination form is outrightly false and incorrect and no such order was ever presented before the concerned officer with the nomination paper or at/before the time of scrutiny. It is submitted that at the time of scrutiny, the petitioner was present personally, however, the petitioner failed to point out any such mistake and further no objection was raised by the petitioner at any time during the scrutiny. It is submitted that after the scrutiny, the nomination form having been rejected, the Returning Officer has no power to review. 6. A reply to the writ petition has also been filed on behalf of the State taking a stand similar to the stand taken by the Returning Officer as noticed hereinabove. It is further submitted that the representation was submitted by the petitioner in the evening, after the process of scrutiny of nomination form was over, which was duly considered and rejected by the Returning Officer, vide order dated 12.11.14 at 9.30 p.m. 7. It is further submitted that the representation was submitted by the petitioner in the evening, after the process of scrutiny of nomination form was over, which was duly considered and rejected by the Returning Officer, vide order dated 12.11.14 at 9.30 p.m. 7. Learned counsel for the petitioner contended that the action of the Returning Officer in rejecting the nomination form of the petitioner is absolutely illegal, arbitrary, unreasonable and unconstitutional. Learned counsel submitted that as per the provisions of Section 24(iii) of the Act, a person will be disqualified only if he is under trial in a competent court which has taken cognizance of offence and framed charges against him for any offence punishable with imprisonment for five years or more. Learned counsel submitted that no proof of framing of charges against the petitioner was available on record and therefore, the order impugned passed by the Returning Officer without application of mind ignoring the order dated 30.9.14 placed on record showing that the court had taken cognizance of the offences, however, no charges were framed against the petitioner till that date, is ex facie actuated by malice. Learned counsel submitted that in the prescribed proforma of declaration form, there is no separate column for giving the details regarding the order taking cognizance and framing of the charges and therefore, in the relevant column, the petitioner had given the details of the order passed by the criminal court taking cognizance for offences specified. Learned counsel drawing the attention of the court to the affidavit attached with the nomination form, submitted that it was specifically deposed by the petitioner that the cognizance of the offences under Section 452, 323 & 34 IPC has been taken by the court of Chief Judicial Magistrate, Sri Ganganagar but it was nowhere mentioned therein that the charges have been framed against the petitioner. Learned counsel submitted that before rejecting the nomination paper, no opportunity of hearing was extended to the petitioner and thus, the action of the Returning Officer is ex facie violative of provisions of Rule 13 of Rajasthan Municipalities (Election) Rules, 1994, which mandates that the Returning Officer can reject the nomination form as invalid only after holding a summary inquiry and giving an opportunity of hearing to the candidate. Learned counsel submitted that on the basis of the material on record it is apparent that the petitioner is not disqualified to contest the election in terms of provisions of Section 24(iii) of the Act and therefore, it will be absolutely undemocratic and unjust to deprive him from contesting the election. Learned counsel submitted that if the petitioner's nomination is accepted, no prejudice will be caused to anybody and therefore, in the interest of justice, appropriate directions deserve to be issued by this court in this regard. Learned counsel submitted that it is not the law that if the elections are imminent in no case aggrieved person can invoke the extra ordinary jurisdiction of this court under Article 226 of the Constitution of India. Learned counsel submitted that if the violation of the law justifies interference to prevent, abuse of power, waste of time and public money, this court can always exercise power of judicial review under Article 226 of the Constitution of India. In support of the contention, learned counsel has relied upon a decision of this court in the matter of “Gopa Ram vs. The Election Tribunal, Bikaner & Anr.”, 2007 (3) RLW 2227, a decision of the Bombay High Court in the matter of “Anant Janardan Patil vs. State of Maharashtra & Ors.”, AIR 2002 Bombay 87, and a decision of Karnataka High Court in the matter of “L.Ramakrishnappa vs. Presiding Officer” (Writ Application No.2487 and 2489 of 1991), decided on 6.11.91. Learned counsel submitted that in the instant case, the rejection of the nomination form of the petitioner being ex facie illegal and arbitrary, if the elections are permitted to be held without participation of the petitioner as candidate, the same are bound to be declared invalid and therefore, in the larger public interest, the order impugned passed by the Returning Officer deserves to be set aside at this stage. 8. On the other hand, Mr. Vikas Balia, learned counsel appearing for State Election Commission, submitted that the petitioner has indulged in sheer falsehood inasmuch as, in the petition filed, it is stated that the nomination form was accompanied by order dated 30.9.14 passed by the Chief Judicial Magistrate, Sri Ganganagar whereas, no such order was filed with the nomination form or at/before the scrutiny of the nomination form. It is submitted that as a matter of fact, order dated 30.9.14 was submitted before the Returning Officer alongwith the representation dated 12.11.14 submitted after the scrutiny of the nomination forms was over. Drawing the attention of the court to the disclosure made by the petitioner in the declaration form submitted alongwith the nomination form, learned counsel submitted that it has been specifically mentioned by the petitioner that the cognizance of the offences under Section 452, 323/34 IPC has been taken and the charges have also been framed by the court of Chief Judicial Magistrate, Sri Ganganagar against the petitioner. Learned counsel submitted that since the offence under Section 452, is punishable with imprisonment for a period more than five years, relying upon the declaration made as aforesaid, the Returning Officer has committed no error in rejecting the nomination form of the petitioner, invoking the provisions of Section 24(iii) of the Act. Learned counsel submitted that taking into consideration the declaration made by the petitioner himself, it was absolutely not necessary for the Returning Officer to make further inquiry into the matter rather, he was under an obligation to reject the nomination paper. It is submitted that before passing the order rejecting the nomination paper, the petitioner personally present before the Returning Officer was extended an opportunity of hearing, however, neither any mistake was pointed out by the petitioner in the nomination paper nor the objection whatsoever was raised in this regard. Learned counsel submitted that as a matter of fact, the objection in this regard was raised by the petitioner by way of representation only after rejection of the nomination paper of the petitioner after due scrutiny. Learned counsel submitted that after finalisation of the list of candidates, the postal ballots have already been printed and the programming of the Electronic Voter Machine (EVM) has also been completed and the voters are invited for polling on 22.11.14 and therefore, at this stage, when the elections are so imminent, there is absolutely no reason why the process should be interfered with by this court exercising its extra ordinary jurisdiction. Learned counsel submitted that it is settled law that the elections should not be held up and the aggrieved person should not be permitted to ventilate his individual interest in derogation of the general public interest, which requires that the election should be conducted according to the time schedule. Learned counsel submitted that it is settled law that the elections should not be held up and the aggrieved person should not be permitted to ventilate his individual interest in derogation of the general public interest, which requires that the election should be conducted according to the time schedule. Learned counsel submitted that Article 243 ZG clearly puts a bar on the court's interference in the electoral matters once the election process has already started and therefore, even otherwise, the question of interference by this court in the midst of the election process is not warranted. Learned counsel submitted that the matter with regard to illegal rejection of the nomination form can always be raised by the petitioner by way of election petition questioning the election of the returned candidate before the Election Tribunal and there is absolutely no reason as to why the petitioner should be granted indulgence by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India, by passing the remedy of raising election dispute available under the relevant statute. In support of the contention, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of “Manda Jaganath vs. K.S.Rathnam & Ors.”, (2004) 7 SCC 492 and Bench decisions of this court in the matters of “Pata Ram Bheel vs. State of Rajasthan & Ors.”, RLW 2005(1) Raj, 415 and “Gopal Singh vs. The Election Tribunal-cum-Additional Civil Judge(S.D.)”, 2009(3) RLW 1878 (Raj.). 9. Mr.V.R.Mehta, learned counsel appearing for the State has adopted the arguments advanced by Mr.Vikas Balia, the counsel appearing for the State Election Commission. 10. I have considered the rival submissions of the learned counsel for the parties and perused the material on record. 11. It is well settled that the word “election” embraces in itself the entire process of election which consist of several stages right from issuing the notification calling for election, till the declaration of the result. It is equally well settled that the election process once started should not be held up or interfered with at the intermittent stage and adjudication of all dispute with regard to the election which has affected the ultimate result of the election should wait till the election process is over. 12. It is equally well settled that the election process once started should not be held up or interfered with at the intermittent stage and adjudication of all dispute with regard to the election which has affected the ultimate result of the election should wait till the election process is over. 12. Indisputably, Part IX A in the Constitution has been introduced to ensure the timely elections and smooth functioning of elected bodies at municipal level. The provisions incorporated by way of Article 243 P to 243 ZG give constitutional status to the municipal bodies and ensure regular and fair conduct of elections. 13. Article 243 ZG of the Constitution of India which bars interference by the court in electoral matters of municipalities specifically provides that no election to any municipality shall be called in question except by an election petition to such authority in such manner as is provided for by or under any law made by the legislature of a State. 14. In Pata Ram Bheel's case (supra), a Bench of this court while considering the question whether Article 243 ZG of the Constitution puts a complete & absolute bar in considering any matter relating to Municipal Election on any ground even before the publication of the notification for holding Municipal Elections by the Court, held : “Thus, we are of the opinion that the bar created under Article 243ZG of the Constitution will not be attracted in a case where the action of the Election commission is found to have affected the very purity or probity of election cutting at very root of the democratic process in gross violation of public law rights. In other wards(sic), in such a situation, a petition under Article 226 of the Constitution would be maintainable before the Election process has commenced but it will have to be taken care that such a judicial intervention would be available only in a case where it does not disturb the mandate of the Constitution to hold the election before the completion of the tenure. Thus, it is imperative on the State Government as well as the State Election Commission to complete the process of delimitation of constituencies and reservation of seats atleast about an year before or any case, six months before, so that the parties prejudicially affected may have an opportunity to seek redress. Thus, it is imperative on the State Government as well as the State Election Commission to complete the process of delimitation of constituencies and reservation of seats atleast about an year before or any case, six months before, so that the parties prejudicially affected may have an opportunity to seek redress. If the Election Commission fails in discharge of their obligation in this regard, it is always open for a citizen to seek mandamus from this Court against the State Election Commission as well as the State to perform their statutory obligation.”(emphasis added) 15. In“N.P.Punnuswami vs. Returning Officer, Namakhal”, AIR 1952 SC 64 , assailing the validity of the rejection of nomination, the candidate filed a writ petition under Article 226 of the Constitution of India. The petition was rejected by the High Court on the ground that High Court had no jurisdiction to interfere with the order passed by the Returning Officer rejecting the nomination form in view of the provisions of Article 329(b) of the Constitution of India, which bars interference by the court in the matters of election to either House of the Parliament or either House of the Legislature of State except by way of election petition. The validity of the decision of the High Court was assailed by the candidate whose nomination was rejected before the Hon'ble Supreme Court inter alia on the ground that the Article 329(b) of the Constitution of India did not bar or exclude the jurisdiction of the High Court under Article 226 of the Constitution of India. The Hon'ble Supreme Court upheld the dismissal of the writ petition and opined that the word “election” as used in Article 329(b) comprehends the entire process of election starting from the notification calling upon the constituency to elect a member and culminating in the candidate being declared elected. The Hon'ble Supreme Court held that a person aggrieved by any of these stages has to wait till the result is declared and the election of the returned candidate can be questioned only thereafter by way of an election petition. The court categorically held that anything done with the process is not open to the writ jurisdiction of the High Court. 16. The view taken by the Hon'ble Supreme Court as aforesaid has been followed in Manda Jagganath's case (supra) relied upon by the learned counsel appearing on behalf of the State Election Commission. The court categorically held that anything done with the process is not open to the writ jurisdiction of the High Court. 16. The view taken by the Hon'ble Supreme Court as aforesaid has been followed in Manda Jagganath's case (supra) relied upon by the learned counsel appearing on behalf of the State Election Commission. In the said case, while considering the maintainability of the writ petition against the illegal rejection of the nomination form, the Hon'ble Supreme Court observed as under:- “12. In our opinion, whether the Returning Officer is justified in rejecting this Form B submitted by the first respondent herein or not, is not a matter for the High Court to decide in the exercise of its writ jurisdiction. This issue should be agitated by an aggrieved party in an election petition only. 13. It is to be seen that under Article 329(b) of the Constitution of India there is a specific prohibition against any challenge to an election either to the Houses of Parliament or to the Houses of Legislature of the State except by an election petition presented to such authority and in such manner as may be provided for in a law made by the appropriate legislature. The Parliament has by enacting the Representation of the People Act, 1951 provided for such a forum for questioning such elections hence, under Article 329(b) no other than such forum constituted under the R.P.Act can entertain a complaint against any election.” (emphasis added) 17. It is to be noticed that the Article 243 ZG of the Constitution of India is in pari materia to Article 329(b) so far as the bar to interference by the courts in electoral matters is concerned. Thus, in view of the bar contained in Article 243 ZG of the Constitution of India and the position of law settled by the Hon'ble Supreme Court as above, the validity of any election under the provisions of the Act of 1994 can be called in question only by way of election petition before the Election Tribunal under the provisions of the relevant statute. 18. 18. Coming to the decision of the Bombay High Court in the matter in Anant Janardan Patil's case (supra), the petitioner therein questioned the legality of rejection of his nomination form for contesting election as Member, Gram Panchayat was questioned by way of writ petition before the High Court wherein, by way of interim order the rejection of the nomination form was stayed by the court and the petitioner was later declared elected unopposed and therefore, taking into consideration the circumstances of the case, the court observed that the remedy under the election law is not available to the petitioner for challenging the order of the Returning Officer rejecting his nomination paper and the matter has to be examined by the High Court under Article 226. Suffice it to say that in the said case, it is not the law laid down that notwithstanding the mandate of provisions of Article 243-O of the Constitution of India, the election to the panchayat can be questioned by way of writ petition before the High Court under Article 226 of the Constitution of India. 19. In L.Ramakrishnappa's case (supra), relied upon by the learned counsel, the court observed that Article 226 of the Constitution confers power on the High Court to issue appropriate writ for enforcement of fundamental rights or for any other purpose and therefore, any illegality committed by any administrative authority can be interfered with by the court and the matters relating to elections are no exception so long as they are not matters relating to election to Parliament and State Legislature, which stand on a different footing in view of the total bar imposed by Article 329 of the Constitution. 20. It is to be noticed that the decision of the Karnataka High Court which relates to the election of the Cooperative Societies was a decision rendered prior to incorporation of Part IX A in the Constitution. 20. It is to be noticed that the decision of the Karnataka High Court which relates to the election of the Cooperative Societies was a decision rendered prior to incorporation of Part IX A in the Constitution. As noticed above, Article 243 G of the Constitution puts a complete bar on questioning the election to any municipality except by election petition presented to such authority and in such manner, as provided for under the relevant State statute and therefore, the said decision does not help the petitioner in any manner rather, the provisions of Article 243 ZG and Article 329 being pari materia, the ratio of the said decision also supports the stand taken on behalf of the State Election Commission. 21. Indisputably, as per provisions of Section 31 of the Act, the election of any person as a Member of Municipality may be questioned by way of an election petition before the District Judge having jurisdiction. Moreover, the rejection of nomination form improperly is a specific ground provided for under clause (c) of sub-section (1) of Section 31 of the Act for challenging the election. 22. Adverting to the facts of the present case, it is to be noticed that in the declaration form attached to the nomination paper submitted by the petitioner, the petitioner has disclosed the facts regarding the criminal case in the following terms:- <font face="Kruti Dev 011"> 1- D;k vH;FkhZ ds fo:) fdlh U;k;ky; es ,slk vkijkf/kd ekeyk fopkjk/khu gS ftlesa U;k;ky; dk vkjksi fu/kkZfjr fd;s x;s gS vkSj mlds fo:) laKku fy;k x;k gS\ ;fn gka] rks fuEu fooj.k nsoa %& ¼d½ U;k;ky; dk uke eq[; U;kf;d eft-] Jh xaxkuxj ¼[k½ fdl vijk/k esa U;k;ky; }kjk laKku fy;k D;k gS vkSj vkjksi fu/kkZfjr fd;s x;s gSa ¼lacf/kr /kkjk o vf/kfu;e crkosa½ 452] 323] 34 Hkk-n-la- ¼x½ U;k;ky; }kjk ,sls vkns’k dh rkjh[k 30@9@2014 </font> 23. Indubitably, Section 24 of the Act provides for general disqualification for a person being chosen as or for being a member of a Municipality. As per clause (iii) of Section 24, if a person is under trial in the competent court, which has taken cognizance of the offence and framed the charges against him of any offence punishable with imprisonment for five years or more is not entitled for being chosen or continue as the member of a Municipality. 24. As per clause (iii) of Section 24, if a person is under trial in the competent court, which has taken cognizance of the offence and framed the charges against him of any offence punishable with imprisonment for five years or more is not entitled for being chosen or continue as the member of a Municipality. 24. A bare perusal of the declaration made by the petitioner noticed as above, apparently shows that the petitioner has made declaration in terms that the court of Chief Judicial Magistrate, Sri Ganganagar has taken cognizance for offences under Section 452, 323 & 34 IPC and the charges have also been framed against the petitioner. It is true that there are no separate columns provided in the prescribed declaration form for furnishing the details of the order taking the cognizance and framing the charge but then, the fact remains that the petitioner has not clarified the position in this regard while furnishing the declaration as aforesaid. The contention sought to be raised by the petitioner that the declaration form was accompanied by order dated 30.9.14 passed by the court taking cognizance is seriously disputed by the respondents. It is the specific stand of the respondents that the copy of the order dated 30.9.14 was placed before the Returning Officer by the petitioner alongwith representation only after the scrutiny was over and the nomination paper was rejected, which stands fortified from the perusal of the representation, copy whereof has been placed on record. Be that as it may, it remains a disputed question of fact as to whether the petitioner had placed the copy of the order dated 30.9.14 alongwith the nomination form or not. In the considered opinion of this court, the disputed facts in this regard can only be adjudicated on the basis of the evidence to be led by the parties and therefore, on the facts and in the circumstances of the case, even otherwise, there is no reason as to why this court should enter into a roving inquiry into the question of facts by passing the remedy of raising the election dispute available to the petitioner under the provisions of the Act moreso, when Article 243 ZG specifically creates a bar against the questioning of the election to a Municipality except by way of election petition as provided for by or under the law made by the legislature of the State. 25. In view of the discussion above, this court is firmly of the opinion that the present case does not suggest any special feature warranting interference by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India in the midst of the elections by passing the remedy of election petition available to the petitioner under Section 31 of the Act after the elections are over. 26. In the result, the petition fails, it is hereby dismissed. 27. However, while parting with, this court considers it appropriate to observe that for removal of confusion prevailing and for the sake of clarity, the prescribed declaration form to be submitted by the candidate alongwith the nomination paper, must be suitably amended so as to provide separate columns for furnishing the details regarding the cognizance of the offence being taken and the charges being framed by the court of competent jurisdiction against the candidate in the pending criminal case, if any.