08 Jul 2121

A writ petition granting the relief claimed by setting aside the order of rejection is not a step to sub-serve the progress of election or not amounts to intervention of the election - Bombay High Court

Case : Gazala Bi Saddam Shah v. The Collector, Buldhana Writ Petition No. 85 of 2021

Court : Bombay High Court

Bench : Justice Manish Pitale

Decided on : 08 Jul 2121

Relevant Statutes

Articles 226 and 243(O) - B of the Indian Constitution

Sections 15 and 15 –A of the Maharashtra Village Panchayats Act 1959

Brief Facts and Procedural History

1. Respondent No. 3 declared an election program for Gram panchayats. On 14 /12/2020, the final voters were published. The nominations forms were to be filed by candidates between 23/12/2020 and 31/12/2020  and the scrutiny of nomination forms were to take place on 31/12/2020 and the nominations forms could be drawn on 04/01/2021. And the Polling date was fixed for 15/01/2021 between 7:30  A.M. and 5:30 P.M. On 18/01/2021, the Counting of votes was fixed and followed by the declaration of result. 

2. In the Present Petition, the petitioner claims that she filed her nomination form in BCC-W (Backward Citizen Category – Women) and for which one seat was reserved. Afterwards, when the Returning Officer (Respondent No. 2 ) published a list, the petitioner was shocked and surprised to find her name in Backward Citizen Category (BCC). It was found that Respondent No 4 had a valid nomination. 

3. The Petitioner filed a writ petition on 02/01/2021 as the final allotment of symbols was dated 04/01/2020. Later, the Court found that the petitioner had made out a prima facie case and the Returning Officer had erred in accepting the nomination form of the petitioner In the BCC category instead of BCC-W Category. Interim relief was granted to the petitioner. Afterwards, the petitioner stood elected. 

4. A recent judgment of the Full Bench of this Court dated 13/01/2021 passed in Karmaveer Tulshiram Autade And Ors. Vs. The State Election Commission and Ors, WPST 26 of 2021, the present writ petition deserve to be dismissed as it is not maintainable. It is a specific bar contemplated under Article 243-O(b) of the Constitution of India and Section 15A of the Maharashtra Village Panchayats Act, 1959 (Act of 1959). It is submitted that the grievance sought to be raised by the petitioner in this writ petition can be raised only by way of the election petition, as contemplated under Section 15 of the Maharashtra Village Panchayats Act 1959.

The Issues of the Court

Whether a Rejection of nomination form to contest the election and granting the relief claimed by setting aside the order of rejection amounts to intervention or a step sub-serve the progress of election?

Whether the rejection of the nomination form attracts the provisions of Article 243- O (B) of the Indian Constitution?

The Observations of the Court:

1. The Honourable Bombay High Court referred to the Judgment i.e. Karmaveer Tulshiram Autade and Ors.vs. State of Election Commission and Ors, WPST 26 of 2021, in which the above questions were framed and answered by referring to two of the judgment i.e. Vinod Pandurang Bharsakade vs. Returning Officer Akot, 2003 (4) Mh.L.J.359 and Mohinder Singh Gill and Anr vs. the Chief Election Commissioner, New Delhi and Ors, 1978(1) SCC 405, It was held that A writ petition seeking to rejection of nomination form to contest an election and granting the relief claimed is not a step to sub-serve the progress of the election and facilitate its completion or not amounts to nay intervention of the election. 

2. The Honourable Bombay High Court observed that Article 243 (O) (b) of the Indian Constitution is a bar for entertaining a writ petition under Article 226 of the Indian Constitution against the order passed by the Returning Officer rejecting the nomination paper.

3. The Honourable High Court referred to another judgment i.e. N. P. Ponnuswami vs. The Returning Officer, AIR 1952 SC 64, when a returning Officer accepts a nomination paper or rejects it then he adjudicates the entitlement of a person to contest election or not to contest an election. It was held that Section 15 (7) of the Maharashtra Village Panchayats Act 1959  would not stop the judge from considering improper acceptance or rejection of nomination papers for setting aside the election of the returned candidate.

4. The Honourable High Court observed that the process of adjudication has been followed while the Returning officer has accepted her nomination form in the BCC category which has an equivalent effect non-acceptance of the rejection of her nomination form in BCC (W) Category. The Honourable High Court held that the petitioner is not Justifying in claiming that her case is covered under Section 15(7) of the Maharashtra Village Panchayats Act 1959  and grievance raised by the petitioner can only be undertaken by an election petition under Section 15 of the Maharashtra Village Panchayats Act, 1959.

The Decision Held by the Court

1. The Writ Petition is dismissed and is not maintainable as it is a specific bar under Article 243-O (b) of the Constitution of India and Section 5 A of the Maharashtra Village Panchayats Act 1959.

2. The interim order dated 04/01/2021 passed by this Court stands vacated.

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