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2018 DIGILAW 1696 (BOM)

Yamu Eknath Anturkar v. Returning Officer, Nagar Parishad, Wanadongri, Taluka Hingna, District-Nagpur

2018-07-13

S.B.SHUKRE

body2018
JUDGMENT : 1. Rule. Heard forthwith by consent of parties. 2. Nomination form of the petitioner to contest the municipal election as councillor of Municipal Council, Wanadongri, District Nagpur from Ward No. 6B has been rejected by the Returning Officer on the ground that it was not accompanied by mandatory certificate in form no. 2 issued by a political party which sponsored her. The rejection came on 26th June 2018. Since the order of rejection or acceptance of the nomination form is appellable under Rule 15 of the Maharashtra Municipal Councils And Nagar Panchayats Election Rules, 1966 (for short, the “Election Rules”), the right of appeal was availed of by the petitioner aggrieved by the decision of the Returning Officer rejecting her nomination form. The learned District Judge by his order dated 5.7.2018 dismissed the appeal. Being aggrieved by the same, the petitioner is now before this Court in the present writ petition. 3. There has been an objection taken to the maintainability of this writ petition on the ground that the nature of the order is such that it cannot be called in question by invoking jurisdiction of this Court under Article 227 of the Constitution of India as it amounts to interference with the election process about which there is complete prohibition under Article 243O of the Constitution of India. 4. The objection has been sought to be repelled by the learned counsel for the petitioner by relying upon the principle of law laid down by the Constitution Bench of the Supreme Court in the case of Mohinder Singh Gill & anr v. The Chief Election Commissioner & ors reported in (1978) 1 SCC 405 which has been followed by this Court in many of its decisions including the decision in the case of Poonam w/o Rajesh Pawar v. Returning Officer & ors reported in 2017 (4) Mh.L.J. 85 . 5. Now, the law is well settled. 5. Now, the law is well settled. If it is seen that the correction of the decision given by the Returning Officer or even the District Judge exercising his power under Rule 15 of the Election Rules, is going to result in furtherance and progression of the election process, it would not amount to any interference in the process and it would only go to facilitate the process of election and, therefore, such correction is possible in exercise of its jurisdiction under Article 227 of the Constitution of India by the High Court. 6. In the case of Election Commission of India v. Ashok Kumar & ors reported in (2000) 8 SCC 216 , the limits of power to be exercised by the High Court while undertaking judicial review of such order have been laid down. The guidelines appearing in paragraph 32 of the said judgment are relevant in this regard. Guideline No. (3), in particular, would be useful for us in the context of the facts involved in the present case. It lays down that the order can be judicially reviewed if it suffers from some malafide action on the part of the authority or is the result of arbitrary exercise of power by the Authority. 7. In the light of what has been laid down by the decisions of the Hon'ble Supreme Court referred to above, one has to consider the effect of the Returning Officer's order impugned before the learned District Judge. 8. That order rests upon only one reason, the reason of not enclosing form no. 2 to the nomination paper. It is only for this sole reason that the nomination form of the petitioner has been rejected by the Returning Officer. The learned District Judge in appeal has, however, not upheld this reason as is clearly seen from observations made in paragraph 11 of the impugned order. He has recorded a clear finding that the reason given by the Returning Officer for rejection of nomination form or the paper of the petitioner on the ground that photo copy of Annexure-II was submitted and not the original, when the original was already with him, was not justified. He has recorded a clear finding that the reason given by the Returning Officer for rejection of nomination form or the paper of the petitioner on the ground that photo copy of Annexure-II was submitted and not the original, when the original was already with him, was not justified. After having found so, the learned District Judge, it is further seen, went on to take up scrutiny of the nomination form with a view to accepting or rejecting it by himself, thereby putting himself into the position of the Returning Officer. The result of such an exercise which was obviously not permissible under the law, has been stated in the subsequent paragraphs 14 and 15 of the impugned order passed by the District Judge. 9. The learned District Judge found on the scrutiny made by him that the nomination form submitted by the petitioner was required to be treated as the one submitted by an independent candidate and not by a candidate receiving sponsorship of a political party, requiring support by five proposers and not just one proposer. After having held so, the learned District Judge further found that the nomination form was signed by just one proposer and, therefore, the nomination form could not have been accepted by the Returning Officer and for this reason alone, the learned District Judge upheld the order of rejection of the nomination form passed by the Returning Officer. 10. Now, we have before us a queer situation arising from the reason for which nomination form was rejected by the Returning Officer as not valid in law in the opinion of the learned District Judge, and another finding recorded by the learned District Judge that the nomination form should have been treated as that of an independent candidate requiring support of five proposers which indeed was not signed by five proposers and was signed only one proposer and so rejection of the nomination form made by the Returning Officer, though for different reason, was legal and proper for this new reason. The fact, however, is that and it is an admitted one, that the nomination form was never rejected by the Returning Officer on the ground that it was a nomination form filed by an independent candidate which was not supported by the five proposers. The fact, however, is that and it is an admitted one, that the nomination form was never rejected by the Returning Officer on the ground that it was a nomination form filed by an independent candidate which was not supported by the five proposers. The decision of rejection of the nomination form by the Returning Officer was for the reason that Form No. 2 was not filed along with the nomination form which reason was found, on facts, by the learned District Judge to be unjustifiable and invalid. So, the question would arise as to whether or not it is permissible for a District Judge exercising appeal power to undertake scrutiny of the nomination paper as if he himself is the authority of the first instance and himself decide to accept or reject a nomination paper for a reason not weighed with the Returning Officer. To find out an answer, we would have to consider scope of the power of the appellate court while deciding the appeal. 11. The fountain of the power of the appellate court is the provision of Rule 15 of the Election Rules. Sub-rule (1) is relevant as it sufficiently spells out scope of the powers of the appellate court in such cases. It is reproduced thus : “15. Appeal – (1) An appeal shall lie to the District Judge of the district in which the municipal area is situated as herein provided from any decision of a Returning Officer accepting of rejecting a nomination paper.” 12. It is clear from the reading of the provision creating right of appeal that what is appellable is the decision of the Returning Officer accepting or rejecting a nomination paper. When a decision is taken by a quasi-judicial authority or judicial authority, it is taken for and is based upon one or more reasons. It is clear from the reading of the provision creating right of appeal that what is appellable is the decision of the Returning Officer accepting or rejecting a nomination paper. When a decision is taken by a quasi-judicial authority or judicial authority, it is taken for and is based upon one or more reasons. It is difficult to countenance a situation of a judicial or quasi-judicial authority taking decisions without any reason (with exception of court marshal cases as held in Somdatta v. Union of India reported in AIR 1969 SC 414 and S.N. Mukherjee v. Union of India (1990) 4 SCC 594 ) and, therefore, when legality or correctness of a decision is called in question in an appeal, the scrutiny done by the appellate authority does not remain restricted to only that of a final decision or the conclusion, but it also extends to the reason on which the decision is based. 13. In other words, the decision intrinsically comprises reasons, and what is appealed against is the sum total of reasons and conclusions resulting from reasons. It would then follow that a decision which is not for a particular reason, is not a decision for that reason and hence not a decision contemplated by Rule 15 of the Election Rules unless the Statute creating right of appeal expressly provides that decision can be scrutinised even for a reason not considered by the lower authority. Such a provision of course can be there in a Statute creating right of appeal, as for example, Order 41, Rules 32 and 33 of the Code of Civil Procedure. But, here we are concerned with an election appeal which has been created in a law relating to conduct of elections, the Rule 15 of the Election Rules. The right that this provision of law creates, is an appeal against a decision of Returning Officer accepting or rejecting a nomination paper. There is no provision expressly made under the Election Rules, unlike power of the civil appellate court under Order 41, Rules 32 and 33 of the Code of Civil Procedure, to confirm or vary or reverse the decree appealed against or to pass any decree and make any order which ought to have been passed or made by the lower civil court. Had any such power as is similar to that of the District Judge under Order 41, Rules 32 and 33 been given to the District Judge entertaining an appeal under Rule 15, he would certainly have been within his rights to himself scrutinize the nomination paper as if he were a Returning Officer and decide to accept or reject the nomination paper irrespective of the reason for which the nomination paper is accepted or rejected by the Returning Officer. But, no such power has been conferred on the District Judge, under Rule 15 of the Election Rules. 14. Ultimately, one cannot turn a blind eye to the well settled position of law on the nature and scope of appeal power. Appeal is a creation of Statute and, therefore, the Appellate Authority has to decide the appeal within the frame in which the Statute creates an appeal. If the Statute does not expressly confer upon the appellate authority all the powers of the fact finding authority, the appellate authority cannot arrogate to itself those powers. In the absence of any express power, the appellate authority has to confine itself to examining the legality and correctness or otherwise of the decision appealed against on the basis of what was considered by the lower authority. This is all the more so when the right of appeal, as in the present case, is created under the rulemaking authority of the State. 15. In the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (the “Act of 1965” for short), no provision of appeal has been made. The right of appeal has been created only in Election Rules, under Rule 15. These Rules have been framed in exercise of the rulemaking power of the State Government under Section 321 (1) and Second proviso to Section 321 (2) of the Act of 1965. So, in order to understand the scope of the appellate powers under Rule 15 of the Election Rules in a better way, we must ascertain as to why provision of appeal is not made in the substantive law and why is it so only under the rule making power of the State Government. To know the answer, we would have to delve into the reason for which the rulemaking authority has been conferred upon the State Government. To know the answer, we would have to delve into the reason for which the rulemaking authority has been conferred upon the State Government. The avowed reason under Section 321 is to generally carry out the purposes of the Act of 1965. The Act of 1965 has been made to give effect to the Constitutional scheme of infusing local bodies, municipal councils and other self governing units with democratic principles and to provide, amongst others, for or to regulate matters, in consultation with the State Election Commissioner, in respect of elections to be held under the Act. This can be seen from various provisions made in the Act and also the scheme of the Act. 16. The scheme of the Act in relation to election of Councilors is such that it unmistakenly suggests that the focus of the legislature is on the conduct of the free, fair, smooth and timely elections and also to discourage litigation mongers from objecting at every stage of the election process with a view to stall it every now and then. That is the reason why, and clearly in keeping with the mandate of Act 243O of the Constitution, a full-fledged right to call in question election or nomination of a Councillor has been given to a candidate at the election or the voter, under Section 21 of the Act, only after declaration of election result and not before that. Even then, in exercise of rulemaking power given to the State Government under Section 321, Rule 15 creating a limited right of appeal has been framed. 17. This right of appeal is limited for two reasons. Firstly, it enables a candidate to appeal only against a decision of the returning officer to accept or reject nomination paper and not against any other decisions of the returning officer. Secondly, it has been made available at an intermediate stage of election process and so cannot be allowed to be enjoyed in a way as to defeat the embargo placed in Section 21 which says that no election of a Councilor be called in question, except by a petition presented in terms thereof after the elections are over. A right limited in law, would go by the limits inhering within the purpose for which it is created. A right limited in law, would go by the limits inhering within the purpose for which it is created. We have just seen the purpose is of conduct of free, fair, smooth and timely elections and not to permit merchants of litigation to have a field day. These limits intrinsic to right of appeal under Rule 15 precisely define the scope of appeal which does not go beyond and which stops at what is done by the Returning Officer when he accepts or rejects the nomination form. The probing lens of appeal, with such nature of the right of appeal, has to be focused on what is done and not what ought to have been done by the returning officer. Saying it differently, if nomination paper is rejected for A reason, what is for the District Judge to do is to examine the issue and state if it is rejected rightly or wrongly for that reason only and not to state that it should not have been rejected for A reason, but should have been rejected for B reason and as it is not done, it will be done by him, unless such power is expressly conferred. But, that is not there in Rule15. Such limited right of appeal, also balances the individual need to have quick and timely access to justice for redressal of a grievance against the public interest of free and fair elections. 18. There is a principle of good governance of a democratically set up society, which needs to be borne in mind while interpreting the scope of appeal powers under Rule 15. This principle is that whenever there is a conflict between individual or similar interest and larger public interest, the latter would always prevail. In the State of Maharashtra & ors v. Jalgaon Municipal Council & ors reported in (2003) 9 SCC 731 , the Hon'ble Apex Court has propounded this principle when it said in paragraph 37 - “One of the principles of good governance in a democratic society is that smaller interest must always give way to larger public interest in case of conflict”. As the appeal power has a bearing upon constituting an elected body of councillors in a democratic manner, this principle of good governance has more relevance and when it is applied to a situation arising from conflict between individual interest and larger public interest, there is no way, for the appeal powers to be understood in such a way as to overshadow the importance of the larger public interest as against the individual interest. In other words, the principle of good governance would make us firmly say that power of appeal under Rule 15 is exercisable only in such a manner that it does not upset the delicate balance that is set between smooth conduct of elections on the one hand and providing of a vent to the aggrieved candidate to express his grievance and seek redressal for the same. 19. Having understood the scope of Rule 15 thus, I would say, the only conclusion that could be drawn in such a case is that the power of the appellate court under Rule 15 of the Election Rules cannot be given such an expanded meaning as to convert that power virtually into a licence to a candidate to raise any and all sorts of objections at any stage of the election and before any authority for the first time, thereby converting the election turf into a free style wrestling field leading to chaos. If this is to be permitted, the very purpose of rulemaking authority stated earlier, would be frustrated. It is for this reason that no power has been expressly conferred upon the District Judge to consider the facts of the case afresh as if he is an authority of the first instance. 20. There is another reason for restricting the scope of appeal power under Rule 15 of the Election Rules, as stated earlier. If in a given case, the nomination form is rejected for A reason and not for B reason, it is quite likely that the nomination paper has been found acceptable for B reason by the Returning Officer and, therefore, the Returning Officer does not speak of B reason, but only points out A reason for rejecting the nomination form. If in a given case, the nomination form is rejected for A reason and not for B reason, it is quite likely that the nomination paper has been found acceptable for B reason by the Returning Officer and, therefore, the Returning Officer does not speak of B reason, but only points out A reason for rejecting the nomination form. Now, if the District Judge in exercise of his power under Rule 15 of the Election Rules decides that reason A which has gone into the decision of the Returning Officer for rejecting the nomination form is incorrect and, therefore, the nomination paper ought to have been accepted, but still comes to the conclusion that there is a scope for rejecting the nomination form for B reason and indeed he does so, it would result in causing of grave prejudice to the candidate affected by such a decision. The prejudice is writ large on the face of record and statute as there is no right of appeal provided against the decision of the District Judge given in this fashion. It would also amount to considering something on which the Returning Officer never gave his express decision. 21. The Hon'ble Apex Court in the case of Kranti Associates Private Limited & anr v. Masood Ahmed Khan & ors reported in (2010) 9 SCC 496 referring to the observations of the Constitution Bench of the Supreme Court in H.H. Shri Swamiji of Shri Amar Mutt v. Commr., Hindu Religious and Charitable Endowments Department reported in (1979) 4 SCC 642 has stressed the need for following of a Latin principle, “Cessante ratione legis cessat ipse lex”. Broadly, it means – “reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself”. So, what follows is that absent the reason, absent the law itself or in other words, reason and the decision are the two sides of the same coin, which do not exist without each other. From this view point also, I find that no expanded scope to appeal power under Rule 15 of the Election Rules can be given and the exercise of the power of appeal has to be confined to a decision actually taken for a particular reason and not to something which is not considered and hence not decided by the authority. 22. 22. The discussion thus far made would make it clear to us that a decision which is appellable under Rule 15 is only a decision given for a particular reason and not a decision which is not based upon a reason stated therein specifically. Of course, if no reason whatsoever is stated by the Returning Officer while deciding the objection taken to the nomination form, that itself would be a ground for an appeal under Rule 15 of the Election Rules. But, even in that case, the District Judge has to confine himself to the legality or otherwise of the objection taken and cannot go beyond the objection taken by considering something newly pleaded before him. 23. In Mohinder Singh Gill & anr v. The Chief Election Commissioner & ors reported in (1978) 1 SCC 405 , Hon'ble Supreme Court has held in clear terms that the validity of an order passed by the Returning Officer must be judged by the reasons mentioned therein and it is not permissible for the higher or superior court to justify the order by supplementing fresh reasons in the shape of affidavit or otherwise. The observations of the Hon'ble Supreme Court made in this regard appear in paragraph 8 and they are reproduced thus : “The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, it validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J in Gordhandas Bhanji (Commr of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 ) : Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant or of what was in his mind or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older.” These observations are squarely applicable to the facts of this case, as could be seen from the facts established on record. 24. It is seen from the facts available on record here that the learned District Judge held that the reason stated by the Returning Officer for rejecting the nomination paper was invalid and unjustified. Having found so and given the limited nature of right of appeal, the only course that was available to the learned District Judge under the law was to direct acceptance of the nomination paper and nothing more. It was not permissible for him to find out some other reason, not even considered by the Returning Officer, to somehow or the other reject the nomination paper, just to create an impression that the order of rejection of the nomination paper is right. The learned District Judge has, therefore, exceeded his jurisdiction in the matter and the end result has been that the order that he ultimately passed was without jurisdiction. 25. Once it is held that the impugned order is without jurisdiction and patently illegal, the writ petition filed under Article 227 of the Constitution of India challenging the order would be maintainable. But, the question is, whether any scope is left for this Court to correct the patent illegality committed by the District Judge now and the answer would be dependent upon the stage the election process has reached. 26. At this stage, learned Government Pleader informs the Court that everything has been completed including installation of electronic voting machines and what is left is the polling scheduled to be held on 19th March 2018. There is no dispute about this stage of the election process. At such a stage, if any interference is to be made with the impugned order, it would result in upsetting the whole election programme and rewinding the clock back and opening of the pandora's box. This would only lead to a confusion on the one hand and possibly further litigation, on the other. At such a stage, if any interference is to be made with the impugned order, it would result in upsetting the whole election programme and rewinding the clock back and opening of the pandora's box. This would only lead to a confusion on the one hand and possibly further litigation, on the other. In order to avoid any complications in this matter, the Court also sought to know from the learned Government Pleader about his receiving any or further instructions from the Returning Officer regarding rescheduling of the election programme to which he answered, upon instructions, that rescheduling was not possible. This has left the Court with no other option than to reject the petition, leaving the parties to agitate the questions involved here on merits in an election petition, if the same is filed. If the election petition is filed and any occasion arises for incurring of further expenditure for the elections, the question of fixing the responsibility to bear the election expenses may also arise and if it arises so, it would have to be left to be determined in the election petition, in accordance with law. 27. This would impel me to find that though the impugned order passed by the learned District Judge is without jurisdiction, the error so committed by him need not be corrected by this Court in exercise of it's supervisory jurisdiction under Article 227 of the Constitution of India. Accordingly, the writ petition deserves to be dismissed. 28. In view of the observations made hereinabove, the writ petition stands dismissed with liberty to the petitioner to resort to appropriate remedy available to her in law. Rule is discharged. No costs.