C.W.P. No.15725 of 2011 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.15725 of 2011 Date of Decision.26.08.2011 Jasbir Kaur w/o Sh. Iqbal Singh, resident of VPO Chaugawan, Tehsil Ajnala, District Amritsar. .....Petitioner Versus Chief Commissioner Gurdwara Elections, Govt. of India, Kothi No.23, Sector 8, Chandigarh and others .....Respondents Present: Mr. Manjit Singh Khaira, Senior Advocate with Mr. Dharminder Singh, Advocate and Mr. Randeep S. Khaira, Advocate for the petitioner. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J.(ORAL) 1. The petitioner seeks for a certiorari to quash the order rejecting her nomination paper for the election in the Women General Constituency on SAD Party ticket for Shiromani Gurdwara Parbandhak Committee. The contention is that Chaugawan Constituency is a dual Constituency where apart from a General Constituency, there is also a Women Constituency enabling exclusively women candidates to contest for the post. The nomination papers have to be filed in Form No.4 and in the form that the petitioner had filed, she had stated as follows:- “I hereby notice Jasbir Kaur as a candidate for election from the Board Constituency 99-Chaugawan.” 2. At the time when the nomination papers were scrutinized by C.W.P. No.15725 of 2011 -2- the Returning Officer, the petitioner represented that she must be considered as having applied for the "Constituency Chaugawan Woman General". The Returning Officer rejected the claim saying that in the form No.4, she had merely referred to the Constituency as 99- Chaugawan and had not stated that she was contesting under the Woman General Constituency. Her contention was that she was a woman and therefore, her candidature must have been taken as a nomination only for the Woman General Constituency but the Returning Officer rejected that plea saying that any modification shall not be possible other than the clerical error, which could be amended under the relevant Rules. The correctness of this order was challenged in appeal before the Deputy Commissioner, Amritsar and Deputy Commissioner, Amritsar affirmed the decision and rejected the nomination filed by the petitioner. 3. Learned Senior Counsel appearing for the petitioner states that the order passed by the Deputy Commissioner is final in terms of Sikh Gurdwara Board Election Rules, 1959 and hence the power of the Court to interference under Article 226 of the Constitution is not in any way barred. 4. I find that once the election process has started, there is no scope for interference by means of a writ petition under Article 226. This is so because the Sikh Gurdwaras Election Enquiry Rules, 1925 makes a provision for election petition under Rule 3 and for presentation of an election petition under Rule 4. Rule 7 provides that any such election petition, which is submitted to the Returning Officer or Deputy Commissioner, as the case may be, shall forward the election petition C.W.P. No.15725 of 2011 -3- received by him under Rule 4 to the Central Government. The above said Rules of 1925 envisage that any person affected in the election process, which include the rejection of nomination paper to have a remedy under these Rules by an election petition Section 3 reads as follows: see page 242. This alone, in my view, shall be the procedure, which a candidate whose nomination is rejected, could pursue and not by means of a writ petition. This is because, if the election process were to continue with a direction from the Court that a nomination paper shall also be accepted for the time being and the result finally to abide by the decision of this Court and if turns out that the writ petition does not go in favour of the petitioner, then it would mean again upsetting the entire election results. It cannot be merely a situation of the next candidate, who has polled the highest votes, could be declared election, for it is nobody's guess as to how the voters would have cast their votes if the petitioner had not been in the fray. It is not possible to split the votes, which the petitioner may poll amongst the other candidates. It will bring several other factors, which will come in the way of an appropriate election result. On the other hand, if the election petition were to be filed after the declaration of the case, then if the contention of the petitioner were to be accepted, it shall always be possible to order a re-poll and ensure that the votes are properly cast and the voters have a clear choice of the candidates to whom they shall cast the vote. That alone, in my view, would be appropriate. 5. Article 243(O) of the Constitution specifically bars interference by Court in electoral matters and makes specific provision relating to the election of Panchayat as well. Learned Senior Counsel appearing for C.W.P. No.15725 of 2011 -4- the petitioner states that this interdict applies only to elections, which take place under the Representation of People Act or for election of Panchayats and will not in any way affect election in statutory bodies or other types of elections. The principle, in my view, would be the same though Article 243(O) of the Constitution does not apply to other elections. 6. I have noticed some decisions of certain Courts which have entertained election petitions even at the state of rejection of nomination papers. For the benefit of the petitioner, I might cite the decision in Nanaji Vs. Commissioner, Amravati Division, Amravati and others AIR 1994 Bom 204 where in an election under the Maharashtra Co-operative Societies Act, 1960 nomination had been rejected and the Deputy Commissioner in appeal had also affirmed the rejection. A writ petition had been filed against the order of the Deputy Commissioner and the issue was the maintainability of the writ petition. There was a specific provision that gave a finality to the decision of the Deputy Commissioner of the same way as the Election Rules provided for the finality of the Deputy Commissioner's order in this case. The Court found in that case that it was appropriate to interfere, for the rejection of the nomination paper seemed patently erroneous and the brazenly wrong order was found to be justifying reason for interference. Yet another judgment of the same Court and by the same Judge under the Cooperative Societies Act could also be cited as supporting the case of the petitioner in Sudhakar Deoraoji Wele and Another Vs. Commissioner, Nagpur Division and others (1997) 99 BOMLR 499. In that case, the disqualification, which was sought to be taken against the C.W.P. No.15725 of 2011 -5- candidate was that he had borrowed some loans from the Society and he had still been a defaulter but on the day of submission of the nomination paper, he had discharged the loan and qualified himself to be a candidate. This was omitted to be seen by the Returning Officer, which the Court said was so brazen and patently wrong that it was necessary to interfere. Another decision of Bombay High Court is the decision in Sanjay Sadashiv Patil Vs. State of Mahrashtra through Secretary Department of Co-operationa d Marketing that dealt with the same situation under the same Act and therefore, I do not want to dilate on the same. Another decision of Madhya Pradesh High Court (Gwalior Bench) was in a matter relating to the election of Agricultural Credit Cooperative Society in Ghanshyam Tiwari and another Vs. State of M.P. and others 2010(3) MPLJ 407, where the Returning Officer was deliberately not being present in office but was sitting in his house and taking instructions from the ruling party member and rejected the nomination papers. That, the court, found was to be an extraordinary situation and found that to be a ground for interference. 7. These decisions, which I have cited to be benefit of the petitioner that the petitions to be entertained even at the stage when the decision was taken to reject the nomination papers are surely extraordinary in the sense that there was clear error committed by the Returning Officer. In this case, I do not find the error to be so patent and is surely arguable whether the petitioner had given the correct particulars in the nomination or not. I do not want to comment upon it more, for it may affect the merits at some other point of time when an election petition were to be filed. I would only hold that this is surely a C.W.P. No.15725 of 2011 -6- moot point that would require a greater consideration, which would better wait till the conclusion of election process and if the petitioner wants to challenge that by means of an election petition. 8. The interference sought at this stage is, therefore, not entertained and the writ petition is dismissed. (K. KANNAN) JUDGE August 26, 2011 Pankaj*