13 Jan 2020

Article 243-O(b) of the Constitution of India is a bar for entertaining a writ petition under Article 226 of the Constitution against an order passed by the Returning Officer rejecting nomination paper for Panchayat Elections - Bombay High Court

Case : Karmaveer Tulshiram Autade and Ors. v. The State Election Commission and Ors. Writ Petition (St.) No.26 of 2021

Court : Bombay High Court

Bench : Justice Dipankar Datta, Justice A. S. Gadkari and Justice G. S. kulkarni

Decided on : 13 Jan 2020

Relevant Statutes

Articles 226, 243-B, 243-C, 243-K, 243-O and 329 of the Constitution of India

Sections 10A, 15 and 15A of the Maharashtra Village Panchayats Act, 1959

Representation of the People Act, 1951

Brief Facts and Procedural History

1. The Returning Officer for Bhose Gram Panchayat passed an order whereby the nomination forms of the petitioners to contest the Gram Panchayat elections stood rejected.

2. The petitions prayed for;

a. Issuance of a writ of mandamus for staying and eventually setting aside the orders of the Returning Officer rejecting the nomination forms of the petitioners;

b. A direction that the petitioners be allowed to contest the Gram Panchayat elections from their respective wards;

c. Issuance of a writ of mandamus to direct the State Election Commission to cancel the election and to organize a fresh election; and

d. A direction on the official respondents to take appropriate action, civil or criminal, against the respondents 7 to 10 (complainants) for producing false and fabricated certificates leading to the rejection of the petitioners’ nomination forms.

3. The State Election Commission (Respondent No. 1) raised an objection on the maintainability of these petitions, referring to the Division Bench decision of the Bombay High Court in Vinod Pandurang Bharsakade v. Returning Officer, Akot and Anr, 2003(4) Mh.L.J. 359 according to which any grievance in relation to the orders rejecting nominations, ought to be raised after the elections are over by raising appropriate election dispute.

4. The petitioners contended that the writ petitions are maintainable relying on two decisions of co-ordinate Benches of the Bombay High Court in Sudhakar s/o. Vitthal Misal v. State of Maharashtra & Ors. [2007(6) All MR 773] and Smt. Mayaraju Ghavghave v. Returning Officer for Gram Panchayat, Dhamangaon and Anr [2004(4) ALL MR 258].

5. The Division Bench of the High Court observed a clear conflict of the opinion of the two different Division Benches on the point as to whether writ petitions under Article 226 of the Constitution would be maintainable challenging the orders of rejection of nomination forms.

6. The Division Bench referred to the below-mentioned issues for the decision by a larger Bench of the High Court.

The Issues before the Court

Framed by Larger Bench of the High Court

  1. Whether a writ petition before the Bombay High Court exercising jurisdiction under Article 226 of the Constitution would be maintainable if the petitioner seeks to challenge an order of rejection of his nomination paper (to contest a Gram Panchayat election) by the Returning Officer/the competent authority having regard to the provisions in Article 243-O of the Constitution as well as section 15-A read with Section 15 of the Maharashtra Village Panchayats Act, 1959?

Referred by Division Bench of the High Court

  1. Does allowing a challenge in a writ petition to rejection of nomination form to contest an election and granting the relief claimed by setting aside such order of rejection, amount to intervention, obstruction or protraction of the election or is it a step to facilitate the process of completion of an election?
  2. Whether the rejection of the nomination form would attract the provisions of Article 243-O(b) of the Constitution of India?
  3. Are the views expressed by the Division Benches of this Court in the cases of Sudhakar s/o. Vitthal Misal v. State of Maharashtra and Ors, 2007(6) All MR 773, and Smt. Mayaraju Ghavghave v. Returning Officer for Gram Panchayat, Dhamangaon and Anr., 2004(4) ALL MR 258, correct, or does the decision in the case of Vinod Pandurang Bharsakade v. Returning Officer, Akot and Anr, 2003(4) Mh. L.J. 359, represents the correct view in law?”

The Observations of the Court

The Larger Bench of the Honourable Bombay High Court observed that:

1. N.P. Ponnuswami v. The Returning Officer, Namakhal Constituency, Namakkal, Salem Dist. & Ors., AIR 1952 SC 64 is considered to be a landmark judgement where it was held that if Part XV of the Constitution is a code by itself i.e., it creates rights and provides for their enforcement by a Special Tribunal to the exclusion of all courts including the High Court, there can be no reason for assuming that the Constitution left one small part of the election process to be made the subject-matter of the contest before the High Courts and thereby upset the time-schedule of the elections. The more reasonable view seems to be that Article 329 covers all ‘electoral matters’.

2. Durga Shankar Mehta v. Thakur Raghuraj Singh, AIR 1954 SC 520 and Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233 approved the ratio of N.P. Ponnuswami.

3. In Dr. Narayan Bhaskar Khare v. Election Commission of India, AIR 1957 SC the election of Dr. Rajendra Prasad as the President of India for the second term was under challenge. The Court approached the construction of Article 71 of the Constitution in the light of N.P. Ponnuswami v. The Returning Officer, Namakhal Constituency, Namakkal, Salem Dist. & Ors., AIR 1952 SC 64 and held, after considering sections 14 and 18 of the Presidential and Vice-Presidential Election Act, 1952, the election of the President or the Vice-President, shall not be called in question except by an election petition presented to the Supreme Court in accordance with the provisions of Part III of the said Act and the rules made by the said Court under Article 145.

4. In K.K. Shrivastava v. Bhupendra Kumar Jain, AIR 1977 SC 1703 V.R. Krishna Iyer, J. observed that in exceptional or extraordinary circumstances, a petition under Article 226 could be entertained.

5. Mohinder Singh Gill & Anr v. The Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC 405 the Supreme Court favoured going beyond what N.P. Ponnuswami v. The Returning Officer, Namakhal Constituency, Namakkal, Salem Dist. & Ors., AIR 1952 SC 64 laid down and a permissible territory, although limited, for the High Courts to entertain writ petitions in relation to election matters was carved out. The special situations the Court perceived to have been left unexplored in N.P. Ponnuswami v. The Returning Officer, Namakhal Constituency, Namakkal, Salem Dist. & Ors., AIR 1952 SC 64 resulted in the Court tracing the power of the Election Commission under Article 324 of the Constitution and law being propounded that since all approaches to the High Court under Article 226 of the Constitution in relation to electoral matters may not call in question an election; as a logical consequence, all writ petitions may not be barred. A writ petition could be barred if it seeks to call in question a step in the election, but if the approach to the Court is to facilitate free and fair completion of election; such approach would be permissible. In view of Article 329(b) of the Constitution, two attacks - one at the intermediary stage and the other after the declaration of the result of the election is not permitted in law. Article 226 of the Constitution suffers eclipse in view of the bar created by Article 329(b).

6. In Election Commission of India through Secretary v. Ashok Kumar & Ors., (2000) 8 SCC 216 the High Court stayed the notification issued by the Election Commission containing direction as to the manner of counting votes and made directions of its own on the subject and held that the law enunciated by the N.P. Ponnuswami v. The Returning Officer, Namakhal Constituency, Namakkal, Salem Dist. & Ors., AIR 1952 SC 64 was extensively dealt with by the Mohinder Singh Gill & Anr v. The Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC 405, and amplified.

7. A petition under Article 226 would not be maintainable if it calls in question a step in the election which may have the effect of interrupting, obstructing or protracting the election.

8. Mohinder Singh Gill & Anr v. The Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC 405 and Election Commission of India through Secretary v. Ashok Kumar & Ors., (2000) 8 SCC 216 do not express views that disagree or dissent from or doubt the decision in N.P. Ponnuswami v. The Returning Officer, Namakhal Constituency, Namakkal, Salem Dist. & Ors., AIR 1952 SC 64. The strength of the Bench deciding N.P. Ponnuswami v. The Returning Officer, Namakhal Constituency, Namakkal, Salem Dist. & Ors., AIR 1952 SC 64 is numerically superior to the strength of the Benches which decided Mohinder Singh Gill & Anr v. The Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC 405 and Election Commission of India through Secretary v. Ashok Kumar & Ors., (2000) 8 SCC 216. Besides, the ratio laid down in N.P. Ponnuswami v. The Returning Officer, Namakhal Constituency, Namakkal, Salem Dist. & Ors., AIR 1952 SC 64 has been approved by Benches of larger strength. If indeed the subsequent Benches in Mohinder Singh Gill & Anr v. The Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC 405 and Election Commission of India through Secretary v. Ashok Kumar & Ors., (2000) 8 SCC 216 were inclined to disagree or dissent from or doubt the law laid down in N.P. Ponnuswami v. The Returning Officer, Namakhal Constituency, Namakkal, Salem Dist. & Ors., AIR 1952 SC 64, it could have recorded the reasons for disagreement/dissent and referred the matter to the Chief Justice for constitution of a larger Bench as held in Central Board of Dawoodi Bohra Community and Another v. State of Maharashtra and Another, (2005) 2 SCC 673. Rather, the law laid down in N.P. Ponnuswami v. The Returning Officer, Namakhal Constituency, Namakkal, Salem Dist. & Ors., AIR 1952 SC 64 was approved and Mohinder Singh Gill & Anr v. The Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC 405 amplified it to specify that in special situations, the writ remedy would be available.

9. N.P. Ponnuswami v. The Returning Officer, Namakhal Constituency, Namakkal, Salem Dist. & Ors., AIR 1952 SC 64 being a direct authority on the point in respect of a challenge to an order of rejection of nomination form, would be binding notwithstanding that a limited area has been carved out by Mohinder Singh Gill & Anr v. The Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC 405 and Election Commission of India through Secretary v. Ashok Kumar & Ors., (2000) 8 SCC 216 for entertainment of writ petitions instituted not to interrupt/obstruct/protract the election process in any manner, but intended to sub-serve the progress of the election and to facilitate its completion; here Article 329(b) is attracted.

10. Article 243-O is pari-materia (two laws related to the same subject matter that must be analyzed with each other) with Article 329. While Article 329(b) has to be read with the Representation of the People Act, 1951, Article 243-O has to be read with sections 15 and 15-A of the Maharashtra Village Panchayats Act, 1959. The reasoning of the Supreme Court in relation to cases covered by Part XV of the Constitution applies to cases covered by Part IX of the Constitution relating to ‘The Panchayats’. Thus, rendering the writ petitions not maintainable. However, the controversy arose in view of the Division Bench decisions in Smt. Mayaraju Ghavghave v. Returning Officer for Gram Panchayat, Dhamangaon and Anr., 2004(4) ALL MR 258 and Sudhakar s/o. Vitthal Misal v. State of Maharashtra and Ors, 2007(6) All MR 773 contradicting the view of an earlier Division Bench in Vinod Pandurang Bharsakade v. Returning Officer, Akot and Anr, 2003(4) Mh. L.J. 359.

11. The grounds of rejection of the nomination paper in view of the clear enunciation of law that the law of election does not contemplate an intermediary challenge when, by law, a forum is constituted and made available by any statute for resolution of an election dispute an election challenged on the ground of improper rejection of the nomination paper.

12. Article 329 starting with a non-obstante clause was inserted in the Constitution by the framers, being conscious of the legal position that in a given case, judicial review would have to stay at a distance in view of such non-obstante clause being inserted.

13. Part IX has been incorporated in the Constitution to achieve a specific object and having regard to the limited life of every Panchayat, the Parliament thought it fit and proper to borrow the wisdom of the framers of the Constitution and thus inserted alike provision which would bar the interference of Courts at an intermediary stage of an electoral process leaving it open for challenges to be thrown after the declaration of the election results.

14. Section 15A has Article 243-O as its source and, therefore, so long Article 243-O stands, section 15A would also stand. Sections 15(1) and 15(2) are not controlled by section 15(5). Section 15(1) and 15(2), read together, are of wide import and would take within its fold a grievance raised against illegal/improper rejection of nomination paper. Thus, the Maharashtra Village Panchayats Act, 1959, a complete code in itself in relation to Panchayati Raj in Maharashtra, provides the necessary machinery for justification of ubi jus ibi remedium (where there is a wrong, there is a remedy) and for appropriate redressal of grievance of any discontented individual who perceives that he has been wronged by the Returning Officer.

15. In view of the conclusions of the decision in Central Board of Dawoodi Bohra Community and Another v. State of Maharashtra and Another, (2005) 2 SCC 673 there is no manner of doubt that the Division Bench while deciding Smt. Mayaraju Ghavghave v. Returning Officer for Gram Panchayat, Dhamangaon and Anr., 2004(4) ALL MR 258 erred in law as well as on facts in not being persuaded to follow the law laid down in Vinod Pandurang Bharsakade v. Returning Officer, Akot and Anr, 2003(4) Mh. L.J. 359.

16. The finding arrived at by the Division Bench Sudhakar s/o. Vitthal Misal v. State of Maharashtra and Ors, 2007(6) All MR 773 that the ban against entertaining writ petitions, as enunciated in N.P. Ponnuswami v. The Returning Officer, Namakhal Constituency, Namakkal, Salem Dist. & Ors., AIR 1952 SC 64, has been diluted is based on an erroneous and incorrect reading of Mohinder Singh Gill & Anr v. The Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC 405 and Election Commission of India through Secretary v. Ashok Kumar & Ors., (2000) 8 SCC 216.

The Decision Held by the Court

The Larger Bench of the High Court held that:

1. The law laid down in Vinod Pandurang Bharsakade v. Returning Officer, Akot and Anr, 2003(4) Mh. L.J. 359 represents the correct view of law; and not the decision in Smt. Mayaraju Ghavghave v. Returning Officer for Gram Panchayat, Dhamangaon and Anr., 2004(4) ALL MR 258 and Sudhakar s/o. Vitthal Misal v. State of Maharashtra and Ors, 2007(6) All MR 773.

2. In agreement with Vinod Pandurang Bharsakade v. Returning Officer, Akot and Anr, 2003(4) Mh. L.J. 359, a writ petition before the Bombay High Court under Article 226 of the Constitution would not be maintainable if the petitioner seeks to challenge an order of rejection of his nomination paper to contest a Gram Panchayat election by the Returning Officer/the competent authority having regard to the provisions in Article 243-O of the Constitution as well as section 15-A read with section 15 of the Maharashtra Village Panchayats Act, 1959.

3. Sub-serving the progress of the election and/or facilitating its completion in the sense enunciated in Mohinder Singh Gill & Anr v. The Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC 405 and explained in Election Commission of India through Secretary v. Ashok Kumar & Ors., (2000) 8 SCC 216 is not to be done by allowing a challenge in a writ petition to rejection of nomination form to contest an election and granting the relief claimed by setting aside such order of rejection.

4. Article 243-O(b) of the Constitution of India is a bar for entertaining a writ petition under Article 226 of the Constitution against an order passed by the Returning Officer rejecting nomination paper and is attracted if such a petition is filed.

5. The reference is answered accordingly. The writ petitions will be dealt with by the appropriate Division Bench in the light of the answers to the referred questions.

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