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2019 DIGILAW 2840 (RAJ)

Dinesh Kumar Bindal v. State of Rajasthan

2019-11-14

DINESH MEHTA

body2019
JUDGMENT Dinesh Mehta, J. - By way of the present writ petition, the petitioner has challenged the order dated 06.11.2019, passed by the Returning Officer (SDO) Municipal Elections 2019, Shivganj, District Sirohi (respondent No.2 herein), whereby petitioner's nomination has been rejected. 2. The controversy lies in a very narrow compass. The petitioner desirous of contesting the election for member of Municipal Board, Shivganj, submitted his nomination form, wherein he has indicated that he has been convicted for the offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954 by the ACJM, Sirohi vide order dated 05.09.2018. 3. After filing the aforesaid nomination, a complaint came to be filed against him, whereupon the Returning Officer issued notice to the petitioner and elicited his response about his conviction under the Prevention of Food Adulteration Act. 4. In response to the notice so issued, the petitioner filed a detailed representation/reply, inter alia stating that his sentence under the Prevention of Food Adulteration Act has been stayed by the appellate Court and, as such, the conviction cannot stand in his way to contest election, while relying upon the judgment of Hon'ble the Supreme Court. 5. The respondent No.2 was, however, not satisfied with the reply given by the petitioner and rejected his nomination, inter alia, observing that the petitioner having been convicted under the Prevention of Food Adulteration Act, 1954, is disqualified. 6. Challenging the order impugned dated 06.11.2019, Mr. Bhandari, learned counsel for the petitioner contended that the respondent No.2 - the Returning Officer (SDO) has not dealt with the contention raised by the petitioner and has not even made any reference to his arguments or the effect of the judgments of Hon'ble the Supreme Court, which were cited by the petitioner. He further argued that the order impugned, passed by the Returning Officer (SDO), Shivganj deserves to be quashed and set aside, being arbitrary and contrary to the mandate of law. 7. Having heard learned counsel for the petitioner, this Court is of the considered opinion that writ petition challenging the rejection of nomination, per se, is not maintainable in view of the clear statutory provisions contained in Sections 30(2) and 31(c) of the Rajasthan Municipalities Act, 2009 read with Rajasthan Municipalities (Election) Rules, 1994 - the only remedy provided under the Act of 2009 is to file an election petition under Section 31 of the Act. That apart, there is a clear embargo contained in Article 243 (zg)(b) of the Constitution of India, to the effect that no election of any Municipality can be called in question, except by an election petition presented to such authority. 8. At this juncture, Mr. Bhandari, learned counsel for the petitioner argued that rejection of nomination paper is preelection dispute and if this Court does not interfere in the matter, petitioner's right to contest the election itself would be marred and that an election petition can be filed only once the elections are held, hence, the remedy provided under the statute is illusory and unefficatious. He added that considering the fact that the order impugned, passed by the Election Officer is per se contrary to law, writ petition deserves to be entertained. 9. Without expressing any opinion about correctness or otherwise of the order impugned passed by respondent No.2, this Court is of the considered opinion that writ Court cannot enter into the arena of election disputes and the same are required to be agitated by way of statutory remedy. 9. The writ petition, therefore, fails. Stay petition also stands dismissed. 10. Needless to observe that merely because present writ petition has been dismissed, petitioner shall not be precluded from availing any other remedy available to him under the law.