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2016 DIGILAW 2248 (GUJ)

Damyantiben Kanubhai Singal v. State of Gujarat

2016-12-28

A.S.SUPEHIA, HARSHA DEVANI

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JUDGMENT : HARSHA DEVANI, J. 1. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 13.12.2016 passed by the third respondent–the Election and Returning Officer (hereinafter referred to as “the returning officer”), in purported exercise of powers conferred under rule 15 of the Gujarat Panchayats Election Rules, 1994 (hereinafter referred to as “the rules”) whereby, the nomination form of the petitioner for elections of the Jakhwada Village Panchayat came to be rejected and seeks a direction to the third respondent to include the name of the petitioner in the list of validly declared nominations. 2. The petitioner is a resident of village Jakhwada, Taluka Viramgam. Elections to the various villages of the Viramgam Taluka were declared by the Assistant Collector, Viramgam Prant, vide a notification dated 05.12.2016. As per the said notification, the last date for filling in the nomination papers was 10.12.2016, the scrutiny of the nomination papers of the candidates was to be carried out on 12.12.2016, the date for withdrawal of nomination papers was 14.12.2016, and the polling was to take place on 27.12.2016. Since 12.12.2016 was declared to be a public holiday, scrutiny was held on 13.12.2016. 3. Being desirous of contesting the said elections, the petitioner filed a completed nomination paper in Form No.4 as prescribed under rule 12(1) of the rules on 9.12.2016 which inter alia contained a declaration on affidavit regarding the number of children she had, wherein the petitioner had clearly stated that she has five children and that she does not have more than two children born to her after 23.3.2005. On 13.12.2016, an objection was filed by the fourth respondent Smt. Vilasben Arjanbhai Gohil before the returning officer inter alia contending that as per the notification dated 23.3.2005, the children born after 4.8.2005 are supposed to be taken into consideration for the purpose of calculating the total number of children, and that the petitioner’s 5th child Shaileshkumar Kanubhai was born on 7.12.2005 and that therefore, the petitioner’s nomination paper is liable to be rejected. Upon receipt of the above objection, on 13.12.2016, the petitioner was informed by the returning officer to give clarification with regard to the number of children exceeding two that the petitioner had given birth to, pursuant to which the petitioner appeared before the returning officer on 14.12.2016 and submitted a statement and clarified that she has five children, all of whom were born before 3.8.2006, being the cutoff date fixed by the State Government; that the last child was born on 7.12.2005, and therefore, the nomination paper of the petitioner be duly approved. On the said date, the returning officer did not inform the petitioner about anything else and conveyed that the nomination paper of the petitioner would be processed in accordance with law. 4. It is the case of the petitioner that thereafter, no order whatsoever was communicated to her by the returning officer with regard to her nomination paper and it was only on 19.12.2016 when the petitioner was informed that the fourth respondent-Vilasben Gohil has been distributing sweets in the panchayat, that the petitioner rushed to the office of the returning officer and upon inquiry came to know that an order dated 13.12.2016 had been passed by the returning officer rejecting the petitioner’s nomination for ward No.5 on the ground that the petition was disqualified as per the amendment of 2005 since the petitioner has more than two children, the last being born on 07.12.2005. It is the case of the petitioner, even at the time of recording the petitioner’s clarification and statement on 14.12.2016 with regard to the issue of number of children, the returning officer did not have the fairness or honesty in him of informing the petitioner that her form was already rejected on the previous day, that is on 13.12.2016 and hence there is reason to believe that the said back dated order was passed subsequently inserting the date 13.12.2016. On 14.12.2016, the returning officer published the list of valid nominations in compliance with rule 16(1) of the rules in Form No.5 wherein, the name of one Savitaben Shivabhai Parmar was shown as the sole candidate whose nomination paper was valid for ward No.5. It is further the case of the petitioner that even while preparing the list of valid nominations dated 14.12.2016, the petitioner was kept in the dark while recording her statement on 14.12.2016. It is further the case of the petitioner that even while preparing the list of valid nominations dated 14.12.2016, the petitioner was kept in the dark while recording her statement on 14.12.2016. However, surprisingly while Savitaben Shivabhai Parmar was shown as the sole candidate whose nomination paper was valid for ward No.5, subsequently, the returning officer declared the fourth respondent as having been elected uncontested under rule 22(2) of the rules despite the fact that the name of the fourth respondent was not even enlisted in the final list of valid nominations declared on 14.12.2016. Upon coming to know of the said facts, the petitioner and her supporters visited the office of the returning officer and made an oral representation with regard to the fraud played by him and as a result thereof the returning officer addressed a letter dated 19.12.2016 to the State Election Officer as well as the District Collector stating that erroneously he has disqualified one Kaushik Kalidas Singal and the petitioner vide order dated 13.12.2016 for wards No.4 and 5 respectively, and that after taking guidance from the Taluka Development Officer, he seeks to rectify his mistake and to include their names in the list of valid nominations for wards No. 4 and 5 and for which necessary permission be given. It is the case of the petitioner that a certified copy of the impugned order dated 13.12.2016 was served to the petitioner only on 19.12.2016 at around 11.00 A.M. 5. Mr. Satyen Thakkar, learned counsel with Mr. Dhaval Shah learned advocate for the petitioner submitted that the impugned order of rejection of the petitioner’s nomination paper is actuated by gross mala fides, and angled at holding elections in an undemocratic manner and an outcome of a fraud in exercise of powers conferred upon the returning officer. It was submitted that though the petitioner had more than two children born to her before 3.8.2006, the fact remains that the last child Shailesh was born to her on 7.12.2005, that is prior to the cutoff date being 3.8.2006 as fixed by the State Government. This being the case, the petitioner would not incur the disqualification as prescribed under clause (m) of sub-section (1) of section 30 of the Gujarat Panchayats Act, 1993 (hereinafter referred to as “the Act”) as introduced vide amendment dated 23.5.2005 and brought into force with effect from 04.08.2005. This being the case, the petitioner would not incur the disqualification as prescribed under clause (m) of sub-section (1) of section 30 of the Gujarat Panchayats Act, 1993 (hereinafter referred to as “the Act”) as introduced vide amendment dated 23.5.2005 and brought into force with effect from 04.08.2005. Therefore, the impugned order of rejection of the petitioner’s nomination paper deserves to be quashed and set aside. 5.1 It was further submitted that the impugned order dated 13.12.2016 as aforesaid, is actuated by gross mala fides, inasmuch as if the said order was passed on 13.12.2016, then the returning officer had no business whatsoever to record the petitioner’s clarification on 14.12.2016 in response to the purported objections dated 13.12.2016 filed by the fourth respondent. On the contrary, the returning officer suppressed the said fact from the knowledge of the petitioner while recording the petitioner’s statement on 14.12.2016 and let the petitioner to believe that the petitioner’s clarification dated 14.12.2016 would be considered in accordance with law. The petitioner, therefore, had reason to believe that the returning officer would act in a fair and impartial manner. It was contended that the mere fact that the order dated 13.12.2016 was served upon the petitioner on 19.12.2016 and was withheld from the petitioner to prevent her from challenging the same itself demonstrates that the said date was probably written on 14.12.2016 as a back dated order dated 13.12.2016 and therefore, the impugned order deserves to be quashed and set aside. 6. From the facts and contentions noted hereinabove, what emerges is that the returning officer had received an objection against the nomination papers of the petitioner on 13.12.2016 at 14:07 hours. Pursuant thereto, a notice came to be issued to the petitioner on 13.12.2016 calling upon the applicant to meet with the objections by 6 O’clock in the evening. In response thereto, on 14.12.2016, the petitioner submitted her clarification stating that she had five children prior to 03.08.2006 and her last child was born on 07.12.2005 in view whereof, her form be accepted. The returning officer has appended his signature on the reply and has put the date 14.12.2016. According to the petitioner on the said date the returning officer did not inform her about anything else and conveyed that the nomination paper of the petitioner would be processed in accordance with law. 7. The returning officer has appended his signature on the reply and has put the date 14.12.2016. According to the petitioner on the said date the returning officer did not inform her about anything else and conveyed that the nomination paper of the petitioner would be processed in accordance with law. 7. By the impugned order dated 13.12.2016, the petitioner’s nomination has been rejected on the ground that she had more than two children in the year 2005 and that her last child was born on 07.12.2005 and that as per the rules and regulations of the Government as well as the clarification in the notification, one year is not required to be excluded and therefore, her form is declared as invalid. This is the order which is conveyed to the petitioner and received by her on 19.12.2016. However, a perusal of Part-V of the nomination form of the petitioner shows that the reason stated for rejecting the nomination of the petitioner is because she has three children. This order is dated 13.12.2016. 8. At this juncture, reference may be made to sub-rule (6) of rule 15 of the rules, which provides that the returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected shall record in writing a brief statement of his reasons for such rejection and supply a certified copy of the order to the candidate as soon as possible after the scrutiny is over, even in the absence of an application from him and without any cost. 9. Thus, the returning officer is required to record a brief statement of his reasons for rejection of the nomination paper and supply a certified copy of the order to the candidate. In the present case, the reasons recorded by the returning officer in Part-V of the nomination paper and in the order communicated to the petitioner are different, whereas the requirement is that a certified copy of the order passed by him has to be provided to the candidate. In the present case, the reasons recorded by the returning officer in Part-V of the nomination paper and in the order communicated to the petitioner are different, whereas the requirement is that a certified copy of the order passed by him has to be provided to the candidate. Therefore, it is not clear as to why the returning officer has recorded two sets of reasons for rejecting the nomination paper of the petitioner, one as reflected in Part-V of the nomination paper and the other as reflected in the order communicated to the petitioner, which creates doubts as regards the manner in which the order has been passed. 10. From the above referred facts, it is apparent that there are serious irregularities in the manner in which the impugned order has been passed. It appears that the objection raised by the fourth respondent was received by the returning officer on 13.12.2016 at 14:07 hours and the petitioner was called upon to submit her explanation thereto by 6 O’clock in the evening. From the endorsement made by the returning officer below the explanation, it appears that the petitioner submitted the same on 14.12.2016. Now, if the order rejecting the nomination had been passed on 13.12.2016, there was no question of the returning officer then accepting the explanation submitted by the petitioner. Moreover, if he had already passed an order rejecting the nomination, he would have informed the petitioner about it at the time of receipt of the explanation. However, the returning officer did not inform the petitioner about the rejection of her nomination paper and accepted her explanation given in rebuttal of the objection and communicated the impugned order whereby he has rejected the petitioner’s nomination form to her only on 19.12.2016. 11. In view of sub-rule (6) of rule 15 of the rules, as soon as possible after the scrutiny is over, the returning officer is required to furnish a copy of the order to the candidate. However, apart from the irregularities noted hereinabove, such order was communicated to the petitioner at a highly belated stage only on 19.12.2016, despite the fact that such order could have easily been communicated to the petitioner on 14.12.2016 when she submitted her explanation in rebuttal. Therefore, the returning officer has also failed to comply with the provisions of sub-rule (6) of rule 15 of the rules. 12. Therefore, the returning officer has also failed to comply with the provisions of sub-rule (6) of rule 15 of the rules. 12. Before adverting to the merits of the impugned order, it may be pertinent to note that it is an admitted position that the petitioner’s last child was born in December, 2005. Clause (m) of sub-section (1) of section 30 of the Act, inter alia, provides that no person shall be a member of a panchayat or continue as such who has more than two children, provided that a person having more than two children on the date of commencement of the Gujarat Local Authorities Laws (Amendment) Act, 2005 (hereinafter in the clause referred to as “the date of such commencement”), shall not be disqualified under the clause so long as the number of children he had on the date of such commencement does not increase. Thus, if the number of children that a candidate has, does not increase after the date of commencement, such candidate would not stand disqualified under clause (m) of sub-section (1) of section 30 of the Act. The date of commencement has been specified by the State Government as 4th August, 2006. Therefore, a candidate who already had two or more children would incur a disqualification if another child was born after 4th August, 2006 and not in case where any child is born prior thereto. 13. Having regard to the fact that the last child of the petitioner was born on 07.12.2005, that is, prior to the date of commencement of the Gujarat Local Authorities Laws (Amendment) Act, 2005, the provisions of clause (m) of subsection (1) of section 30 of the Act would clearly be not attracted. Accordingly, the petitioner’s nomination paper could not have been rejected on the ground that she has incurred a disqualification under section 30(1)(m) of the Act. 14. Another glaring aspect of the matter is that it appears that initially after rejecting the nomination paper of the petitioner, the returning officer had, on 14.12.2016, issued a list of validly nominated candidates as contemplated under sub-rule (1) of rule 6 of the rules, wherein the name of only one candidate viz., Savitaben Shivabhai Parmar was shown. However, thereafter, the returning officer has under sub-rule (2) of rule 22 of the rules, declared the fourth respondent Vilasben Arjanbhai Gohil as having been elected uncontested. However, thereafter, the returning officer has under sub-rule (2) of rule 22 of the rules, declared the fourth respondent Vilasben Arjanbhai Gohil as having been elected uncontested. However, such declaration in Form-12 does not bear any date. In this view of the matter, it is quite confounding as to how after Savitaben Shivabhai Parmar was declared to be the only validly nominated candidate, the fourth respondent came to be declared as elected uncontested. It is therefore, manifest that there are serious irregularities in the conduct of the elections which are a matter of grave concern. In a democracy, the right to contest an election is a valuable right and a returning officer cannot be permitted to thwart such valuable right by resorting to blatant illegalities. 15. To make matters worse, after committing the above irregularities, the returning officer has addressed a communication dated 19.12.2016, to the State Election Commission stating that after seeking guidance from the Taluka Development Officer, he had decided to accept the nomination papers of the petitioner and one Kaushikbhai Kalidas Singal and that the necessary statements be amended accordingly. Thus, the manner in which the election has been conducted is a mockery of the election process and requires to be deprecated in the strictest terms. If this is the manner in which the returning officers are going to function, it may not be advisable to assign such responsible duties to them. 16. In the current panchayat elections, matters after matters have come up before this court, wherein the returning officers have acted in flagrant contravention of the election rules resulting in serious prejudice to the rights of those candidates. It is, therefore, high time that the State Election Commission fixes some norms so as to regulate the election process inasmuch as the returning officers being untrained persons are not well versed with the election process and the relevant statutory process which has serious consequences. Considering the nature of the cases that have come up before this court in the current panchayat elections, some of the suggested norms that may be laid down are: - the returning officer upon receipt of a nomination paper should fill in Part VI thereof by recording the time and date of receipt of the nomination paper and stating the time and date on which scrutiny shall be carried out. It may be noted that though the returning officer is required to fill in all the parts of the statutory form No.4, various parts thereof which are required to be filled in by the returning officer are left blank, as in the present case, wherein the returning officer has neither filled in Part IV and VI thereof; - upon receipt of an objection, the returning officer shall make an endorsement thereon, regarding the time and date of receipt thereof and whether on an objection raised by him or pursuant to an objection received from any person, the returning officer shall also record the time and date when the candidate was informed about the objection and as to what time has been allowed to the candidate to rebut such objection; - when an order rejecting or accepting a nomination is made, the time and date of passing the order may be recorded so as to obviate any irregularities, akin to the ones in the present case; - the returning officer is also required to be apprised of the difference between a technical defect and a defect of a substantial character; - having regard to the fact that in several cases where there were deficiencies other than those stipulated under rule 12 of the rules, the returning officers have called upon/allowed the candidates to rectify such defects, the Election Commission should also examine as to whether under the scheme of the Act and the rules, there is any power vested in the returning officer to permit a candidate to remove any defect in the nomination paper at the time of scrutiny, though prima facie, there is no such power vested in the returning officer to permit a candidate to remove defects other than that specifically provided under rule 12 of the rules. If the Election Commission comes to the conclusion that it is permissible, it should issue guidelines specifying as to which defects in a nomination form can be permitted to be rectified on the date of scrutiny and within what time, such defect should be removed. If the Election Commission comes to the conclusion that it is permissible, it should issue guidelines specifying as to which defects in a nomination form can be permitted to be rectified on the date of scrutiny and within what time, such defect should be removed. - For the purposes of clause (kk) of sub-section (1) of section 30 of the Act, whereby a candidate is disqualified if he does not have a water closet at the place of ordinary residence, the candidate is required to submit a certificate of the Talati-cum-Mantri of the village panchayat certifying that he has the necessary facility. However, it has been noticed by this court in umpteen number of cases that the Talati-cum- Mantri initially issues such certificate which is produced along with the nomination paper. However subsequently, upon an objection raised in this regard, the returning officer gets a summary inquiry made through the very same Talati-cum- Mantri, who then issues a certificate which is contradictory to the earlier certificate issued by him. Such conduct on the part of the Talati-cum-Mantris raises serious doubts about the veracity of the certificates issued by them which needs streamlining of the procedure to be adopted for the purpose of issuing such certificate. It also needs to be provided that once such certificate is issued, the same shall be final insofar as consideration of the validity of the nomination paper at the time of scrutiny is concerned and that it would not be open for the Talati-cum-Mantri to issue a conflicting certificate. Strict action is also required to be taken against a Talati-cum-Mantri who indulges in issuing contradictory certificates, as the same clearly establishes negligence in the discharge of his duties. - These suggestions are only illustrative and not exhaustive. 17. Adverting to the facts of the present case, as noticed earlier, the result of the election has already been declared. Under the circumstances, despite there being serious irregularities in the manner in which the nomination of the petitioner has been rejected, this court does not deem it fit to interfere at this stage, leaving it open to the petitioner to avail of the appropriate remedy by way of election petition under the relevant provisions of the Act. 18. Subject to the above observations, the petition is disposed of. Notice is discharged with no order as to costs. Order accordingly.