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2015 DIGILAW 210 (MP)

Quazi Ziyauddin v. Quazi Ziyauddin

2015-02-20

A.M.KHANWILKAR, R.S.JHA

body2015
ORDER : ” Appellant ' Quazi Ziyauddin appears in person. He submits that Advocate engaged by him has expressed inability to appear before the Court due to call given by the Bar Association to boycott this Court. He submits that he may be permitted to discharge his Advocate. He submits that he is compelled to take this step as matter cannot wait any further considering the fact that election is scheduled to be held on 22.02.2015 and if the matter is not heard before that date, the same will become infructuous. 2. On the oral request made by the appellant, advocate Shri M.K. Agrawal is discharged. 3. Appellant has been informed that once the Court considers the arguments on merits, later on, appellant will not be permitted to file application for rehearing of the case on the ground that on earlier occasion Advocate could not appear in the Court. Appellant has understood the consequences and accepts the position. 4. In view of the above, the matter was proceeded on merits. Now the appellant submits that he may be permitted to take assistance of Shri Quazi Fakhruddin. By way of indulgence and being exceptional situation, we allow Shri Quazi Fakhruddin to espouse the cause of the appellant. 5. The proxy of the appellant in all fairness submits that he is only a student of B.Com and during his submission if he refers to any aspect which is inappropriate, that may be condoned and overlooked. 6. We appreciate the fair stand taken by the proxy of appellant and allowed him to address us. He has relied on the decision of the Division Bench of Karnataka High Court in the case of L. Ramakrishnappa v. Presiding Officer, ILR 1991 Kar 4421, and para 13 in particular, to contend that learned Single Judge has completely glossed over the said legal position. Karnataka High Court placing reliance upon Supreme Court decision Hari Vishnu Kamath v. Ahmad Ishaque and others, AIR 1955 SC 233 , in para-13 has noted, which reads thus; ' .A reading of both the observations together make it clear that the Supreme Court had made a distinction between the maintainability and entertainability of Writ Petition in election matters. Karnataka High Court placing reliance upon Supreme Court decision Hari Vishnu Kamath v. Ahmad Ishaque and others, AIR 1955 SC 233 , in para-13 has noted, which reads thus; ' .A reading of both the observations together make it clear that the Supreme Court had made a distinction between the maintainability and entertainability of Writ Petition in election matters. The principle laid down by the Supreme Court is that in respect of election matters, unless an extraordinary case is made out in a given case, a Petition under Article 226 of the Constitution should not be entertained. This clearly means that a Petition under Article 226 of the Constitution challenging the legality of actions taken or orders made in the course of an election to a local authority or any other body on the ground of violation of law, is maintainable but should not be entertained by the High Court unless the violation of law made out is such as would justify the interference under Article 226 of the Constitution immediately to prevent abuse of power and waste of public time and money and the alternative remedy by way of Election Petition after the elections is not an efficacious remedy.' 7. The fact remains that the learned Single Judge has adverted to the bar under Article 243-O(b) of the Constitution and particularly Rule 21 of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 providing for ground of improper acceptance of the nomination of the returned candidate by way of election petition. Since statutory remedy is available to the petitioner and in view of the bar contained in Article 243-O, no fault can be found with the opinion of the learned Single Judge that the challenge on the ground of wrongful acceptance of nomination form of respondent No. 5 cannot be taken forward by way of writ petition under Article 226 of the Constitution of India. 8. The argument of the appellant that if the contention of the appellant that respondent No. 5 is ineligible and had produced bogus caste certificate was to be accepted, it will be waste of public exchequer to elect the ineligible candidate and to repeat the exercise of electing new candidate. 9. Indubitably, the prerogative to accept and reject the nomination form is of the Returning Officer. That decision of the Returning Officer can be challenged by way of statutory appeal. 9. Indubitably, the prerogative to accept and reject the nomination form is of the Returning Officer. That decision of the Returning Officer can be challenged by way of statutory appeal. We are conscious of the fact that appellant is not a contesting candidate himself but that does not mean that the bar of jurisdiction of the Court in Article 243-O can be overlooked and especially when the remedy to challenge the decision of the Returning Officer of wrongful acceptance of nomination form of respondent No. 5 is available by way of election dispute. 10. Suffice it to observe that no interference in intracourt appeal jurisdiction is warranted. Needless to observe that in the election dispute if the contention of the appellant that the respondent No. 5 had produced bogus certificate were to be accepted, the Authorities will be obliged to take appropriate action against respondent No. 5 for the said acts of commission and omission and proceed against him in accordance with law. 11. Disposed of accordingly. Order accordingly.