1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Writ Petition No.4188 of 2009 Chinnaji s/o Bhimayya Nalboga, Aged about 50, Occupation – Agriculturist, Resident of Ward No.6, Ghuggus, Tahsil and District Chandrapur. ... Petitioner Versus Sub Divisional Officer & Election Officer, Office of District Collector, Chandrapur. ... Respondent Dr. R.S. Sundaram with Ms U.R. Tanna, Advocates for Petitioner. Smt. B.H. Dangre, Additional Government Pleader, with Shri P.D. Kothari, Assistant Government Pleader, for Respondent. CORAM : R.C. Chavan, J. DATE : 7th October, 2009 Oral Order : 1. The petitioner had filed his nomination for contesting election in Chandrapur Assembly Constituency. His nomination paper was supported by ten proposers, who included one Zode Dhanraj Sudhakar. His serial number in the voters’ list was wrongly mentioned as “224”, when it ought to have been “424”. At the time of scrutiny of the nomination, the petitioner was present and this defect in 2 the nomination was brought to his notice. However, the petitioner did not seek any time for rectifying the defect, but claims to have requested that he will take legal assistance of his counsel to make himself known about the error. According to the Returning Officer, since the petitioner had not sought any postponement of process of scrutiny of his nomination paper, after the scrutiny of nomination papers was over, a list of valid nominations were published and also dispatched to the Chief Electoral Officer. This took place on 26-9-2009. After this, according to the petitioner, he had been to the Returning Officer. According to the Returning Officer, the scrutiny was over at 1.35 p.m. and the petitioner returned to the chamber of the Returning Officer at 2 p.m. and orally sought permission to correct serial number of the proposer by bringing identity cards. The Returning Officer claims to have declined, since the list of valid nominations was already displayed on the notice board. On 28-9-2009, the petitioner filed a representation before the Returning Officer, pointing out that his proposer Zode Dhanraj Sudhakar was in fact a voter, who was listed in the voters’ list and that his serial number was wrongly mentioned as “224” instead of “424”. He had also pointed out that another candidate, one Ratnamala Bawne, had been allowed to correct five errors in her nomination paper by the Returning Officer. Candidate Kavita Amte was also allowed to correct five mistakes in the nomination paper, and, therefore, wanted his nomination to be accepted. This was rejected by the Returning Officer by order dated 29-9-2009 stating that the 3 nomination paper of the petitioner has already been rejected and the reports have been submitted to the Chief Electoral Officer, Maharashtra, and the District Electoral Officer, Chandrapur. 2. The petitioner then approached this Court by filing the present writ petition on 30-9-2009, which was first placed before a Division Bench on 1-10-2009 and has been eventually ordered to be placed before me yesterday. Accordingly, it has been heard today. 3. The learned counsel for the petitioner pointed out that proviso to sub-section (4) of Section 33 of the Representation of the People Act, 1951 specifically makes it clear that an error of the type on which the Returning Officer has placed reliance, could not have resulted in rejection of the nomination paper. The said proviso reads as under : “ Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination 4 paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked.” The learned counsel for the petitioner further pointed out that in view of this proviso, a clerical error in regard to any place mentioned in the electoral roll or the nomination paper, should not have persuaded the Returning Officer to reject the nomination of the petitioner. He also pointed out that in the Handbook for Candidates issued by the Election Commission, in Clause 10 of Chapter-IV, the grounds for rejection of nomination papers have been enumerated and this ground of wrong number in voters’ list does not find place in the grounds (a) to (p) thereof. Also in Clause 9.4 in Chapter-VI of Handbook of Returning Officers, they have been specifically directed not to reject nominations on such ground. He, therefore, submitted that prima facie the nomination paper of the petitioner was wrongly rejected by the Returning Officer. 4. The learned counsel for the petitioner also placed reliance on a judgment of the Supreme Court in Ram Bhual 5 v. Ambika Singh, reported at AIR 2005 SC 4233, where the Court considered whether the error, which led to rejection of nomination paper, was of a substantial nature. It is not necessary to dwell at length on this judgment, since prima facie the contentions of the petitioner may not be wrong as to the rejection of nomination paper was on account of wrong serial number of the proposer in the voters’ list. 5. The learned Additional Government Pleader for the respondent submitted, first, that the petitioner could have had recourse to the liberty available to him in seeking correction of the error by requesting the Returning Officer to adjourn the scrutiny of his nomination paper. Clause 12 of Chapter-VI of Handbook for Candidates provides that a candidate may apply for time to rebut any objection and the Returning Officer may allow an adjournment for two days. She pointed out that the petitioner had not sought any such indulgence from the Returning Officer. The petitioner has stated in para 4 of the petition that he had only told the Returning Officer while leaving the Returning Officer’s chamber that he would take legal assistance of his counsel about the error. The petitioner has not stated at what point of time he returned to the chamber of the Returning Officer. However, the affidavit-in-reply filed by the Returning Officer shows that the petitioner returned to his chamber at 2 p.m. after the scrutiny of the nomination papers was over at 1.35 p.m. on that day. Therefore, according to the learned Additional Government Pleader, since no such 6 indulgence was sought, there was no occasion for the Returning Officer to postpone or adjourn the scrutiny of the petitioner’s nomination paper. She submitted that after the scrutiny was over and a list of valid nominations was displayed, there could be no question of re-opening the whole process, since, according to her, this may open Pandora’s box and may reduce the whole exercise of scrutiny of nominations to a farce, since anybody could, any point of time, draw the attention of the Returning Officer to a fault and have it corrected. 6. The learned Additional Government Pleader submitted that in any case, it is not open for this Court to interfere in the process of elections, which has already commenced in view of an express bar to interference enacted in Article 329 of the Constitution of India. She submitted that this had been considered way back in 1952 in N.P. Ponnuswami v. Returning Officer, Namakkal, reported at AIR (39) 1952 SC 64, by the Apex Court and it had been held that the process of election includes the whole process right from filing of nomination papers till the declaration of the results. She submitted that incorrect rejection of nomination paper is one of the grounds on which the election could be set aside through an election petition in view of the provisions of Section 100(1)(c) of the Representation of People Act. She pointed out that this position has been considered by this Court as recently as on 29-9-2009 while disposing of Writ Petition No.4151 of 2009 raising a similar objection to the rejection of a 7 nomination and, therefore, a different view could not now be taken. 7. The learned counsel for the petitioner submitted that the bar enacted in Article 329 of the Constitution is not of such a nature as to totally forbid interference by the Courts in the entire election process. He pointed out that the Supreme Court had considered this aspect in Election Commission of India, through Secretary v. Ashok Kumar and others, reported at (2000) 8 SCC 216, and in para 32, had observed as under : “32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove: (1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. 8 (2) Any decision sought and rendered will not amount to “calling in question an election” if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. (4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for for invoking the jurisdiction of the court. (5) The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar or 9 Article 329(b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court’s indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.” (Emphasis supplied) 8. The learned counsel for the petitioner submitted that in view of the observation of the Supreme Court in sub-para (2) above that any decision sought and rendered will not amount to “calling in question an election” if it subserves the progress of the election and facilitates the completion of the election process, questioning such a decision cannot be described as questioning the election. Therefore, according to him, a decision, which would further the election process by allowing a candidate to contest, would not amount to interference in the process of election. He pointed out that if prima facie the Court 10 comes to the conclusion that the nomination was improperly rejected and is aware of the fact that the election would be vulnerable, the Court would unwittingly be a party to a lapse, which would throw the candidates as well as the electorate to another process of churning at a great cost to the exchequer as well as the people. Therefore, according to him, interference in improper rejection of a nomination paper cannot be equated to interference in improper acceptance of a nomination paper and if a nomination paper is shown to have been improperly rejected, the Court would not only be entitled to interfere, but also be obliged to do so in order to ensure that there is no additional burden on the exchequer as also the concerned House of the Legislature is not deprived of representation from the Constituency in question on account of setting aside the election. 9. He submitted that a Division Bench of this Court (of which I was a member) in Mohd. Talib s/o Mohd. Sadique (Dr.) v. Dr. A.S. Kuchewar, reported at 2007(4) Mh.L.J. 557, had specifically taken such a view and had observed in para 22 as under : “22. Once the election process is allowed to be completed and then dispute of the instant nature is allowed to be raised, the possibility of entire election getting set aside in the peculiar facts of this case cannot be ruled out. One has to bear in mind that there is, however, a vital 11 difference between improper rejection and improper acceptance of a nomination. In the former case the entire electorate is deprived of its right to vote for a candidate who was qualified to stand. In the latter case, all the candidates including the unqualified one, usually compete at the polls and the electorate gets an opportunity of voting for a candidate of its choice. Under these circumstances, this is a proper stage wherein the mistake committed by the Returning Officer needs correction instead of placing the entire election process in jeopardize after completion thereof.” In para 23, we had held that the instances of preventing a bona fide contestant by rejecting nomination form on the technical ground are not uncommon and that it was also not unknown that an illegally elected body, most of the time, completes its tenure in the office even before the election dispute is decided on merits because most of the time or invariably the Courts by way of self-imposed discipline refuse to interfere with the election process at the interim stage once the same is set in motion. 10. As rightly pointed out by the learned Additional Government Pleader, these observations came in the context of elections to the Maharashtra State Veterinary Council, a statutory body, and not to a House of Legislature or Parliament. There was no provision, like Article 329 of 12 the Constitution, which barred jurisdiction of a Court to interfere in the process of election. She submitted that when the Courts imposed certain restrictions on themselves, those restrictions would obviously be lifted in a good case and, therefore, pointed out that the judgment in Mohd. Talib’s case could not be said to be a precedent justifying interference in the process of elections to the Legislative Assembly. 11. The learned counsel for the petitioner next submitted that a Division Bench of this Court, sitting at Aurangabad, in Baburao s/o Kalu Koli v. State of Maharashtra and others, reported at 2008(2) Mh.L.J. 203, had interfered in an election process in exercise of powers under Section 226 of the Constitution, even after noting similarly worded provisions of Article 243-O of the Constitution, in the context of elections to Village Panchayat. As rightly pointed out by the learned Additional Government Pleader, even this interference came, not when the elections were in progress, but after the same were over, since the Court found that the whole process was improper and, therefore, the very foundation of the elections had collapsed, and so it was a fit case for interference in exercise of writ jurisdiction under Article 226 of the Constitution. 12. The learned counsel for the petitioner also placed reliance on a judgment of this Court in Sanjay Sadashiv Patil v. State of Maharashtra and others, reported at 13 2008(4) Mh.L.J. 262, where in para 27, the Court observed that in relation to matters of offices which are governed by the Constitution of India and Representation of People Act or in relation to Local Self-Governments, it is clear that there is a constitutional bar of interference in the process of election. Any grievance in relation to the electoral process, including the results, has to be by way of a challenge before the Election Tribunal as constituted under the concerned Act. The Court then observed that the principle was also followed in relation to statutory bodies or even non-statutory bodies, like co-operative societies, and then justified judicial interference in the case of elections to the Agricultural Produce Market Committee. In view of the fact that the Court had specifically spelt out that the position of Parliament and Legislatures in respect of their constituencies was different, and that the principle had only been applied by the Courts to other bodies, it would not be permissible to say that the judgment lays down a principle of law, which would entitle this Court to interfere in the process of election to the Legislative Assembly from Chandrapur Constituency. 13. The learned Additional Government Pleader also pointed out that by now the ballots have already been printed and dispatched to the persons, who are entitled to cast votes by post and half of the electronic voting machines have already been programmed and, therefore, it would not be permissible to set the clock back. Further, as rightly pointed out by the learned Additional Government 14 Pleader, this is not a case where on the face of record, the order impugned could be held as vitiated, since there is a dispute as to when the petitioner approached the Returning Officer in order to correct the errors : before the process of scrutiny was over or, as the Officer states on oath at 2 p.m. after the process was over at 1.35 p.m. This would involve taking evidence. 14. That apart, since the bar enacted under Article 329(b) of the Constitution itself would enjoin that this Court keeps hands off the election process once began, with whatever consequences, including the exchequer being burdened with the possibility of footing the bill of a fresh election, the petition would have to be dismissed and it is accordingly dismissed. 15. Steno copy of this order be furnished to the learned counsel for the parties. Judge. Pdl.