1 13WP.3714-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3714 OF 2011 Amol Bhausaheb Jadhav. ..Petitioner. Vs. The Returning Officer, 223, Rahuri Constituency & Assistant Returning Officer, Rahuri, Dist.Ahmednagar & Ors. ..Respondents. .... Mr. A.A. Kumbhakoni, i/b. Mr.A.M. Kulkarni, for the Petitioner. Mr. V .D. Patil, G. P. & Mrs.M.P. Thakur, AGP, for Respondent Nos.6 to 8. .... CORAM : D. D. SINHA & A. R. JOSHI, JJ. DATED : 03rd AUGUST, 2011 ORAL ORDER (PER D.D. SINHA,J.): 1. Heard learned Counsel for the petitioner and learned Government Pleader for the State. 2. Learned Counsel has narrated the relevant facts which are as follows : the petitioner is a citizen of India and a PPD 2 13WP.3714-11 permanent resident of Flat No.7, Dhansampada Bldg., Bhistbag Chowk, Pipeline Road, Savedi, Ahmednagar. The petitioner is a voter from Rahuri Constituency No.223. Respondent No.1 is the Assistant Registrar, Rahuri, District–Ahmednagar, who acted as a Returning Officer. Respondent No.2 is the State Election Commission which has conducted the election to the Maharashtra Legislative Assembly. Respondent No.3 is the Election Commission of India. It is submitted that Respondent No.4 has been elected as a Member of the Maharashtra Legislative Assembly. His election is liable to be quashed and set aside by this Court by exercising extraordinary jurisdiction under Article 226 of the Constitution for suppression of material facts in the affidavit filed by respondent No.4 along with his nomination papers, on the following two grounds : [I] Rule 4A of The Conduct of Election Rules, 1961 deals with the form of affidavit to be filed at the time of delivering nomination paper under sub-section (1) of section 33 of The Representation of the People Act, 1950. Section 33 of the said Act, deals with 3 13WP.3714-11 presentation of nomination paper and requirements for a valid nomination. Similarly section 36 deals with scrutiny of nomination and sub section (4) stipulates that returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. It is contended that the candidate as per Rule 4A of the Rules of 1961 is also required to deliver to the returning officer an affidavit sworn by the candidate before a Magistrate of First Class or a Notary in form 26 of the Rules. It is the case of the petitioner that respondent no. 4 suppressed a material information pertaining to a movable as well as immovable property and therefore the defect being of a substantial character the returning officer ought to have rejected the nomination form of the respondent no.4. However, failure on the part of the returning officer to take appropriate steps as per the procedure applicable in this regard by rejecting the nomination paper of respondent no. 4, the petitioner is seeking appropriate direction in 4 13WP.3714-11 this regard in the present petition. [II] The second ground is that having regard to the provisions of Article 329(b) of the Constitution of India, which provides that the High Court is not entitled to exercise its jurisdiction under Article 226 of the Constitution, and further that writ of quo warranto could not be issued at the instance of the defeated candidate in the election. It is submitted that the present Petition is maintainable though a remedy of Election Petition was available to the petitioner in view of the law declared by the Apex Court in the case of K. Venkatachalam Vs. A. Swamickan and another, reported in (1999) 4 Supreme Court Cases 526. 3. The counsel for the petitioner has fairly conceded that in the instant case the petitioner has neither taken any objection in respect of the nomination paper submitted by the respondent no.4 before the last date of scrutiny of nomination paper by the returning officer nor thereafter. The petitioner for the first time filed a complaint in view of Section 125-A of The Representation 5 13WP.3714-11 of the People Act, 1951 one year after the declaration of the result of the election. It is pertinent to note that section 125-A deals with the penalty for filing false affidavit and contemplates that a candidate who himself or through a proposer with intent to be elected in election, (i) fails to furnish information relating to sub-section (1) of section 33-A; or (ii)gives false information which he knows or has reason to believe to be false; or (iii)conceals any information, in his nomination paper delivered under sub-section (1) of section 33 or in his affidavit which is required to be delivered under sub-section (2) of section 33-A, as the case may be, shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which may extend to six months, or with fine, or with both. 4. We have given anxious thought to the contentions canvassed by the respective counsel. In the instant case 6 13WP.3714-11 following facts are not in dispute: i. The petitioner has not raised any objection to the nomination paper delivered by the respondent no. 4 to the returning officer before or after the last date of scrutiny of nomination paper. ii. The petitioner only filed a complaint as per the provisions of section 125-A of the Act of 1951 on 15/19-11-2010 i.e. admittedly one year after the declaration of the result. It is alleged by the petitioner that the respondent no.4 has suppressed material facts in the affidavit filed in form no. 26 required to be annexed along with the nomination paper. The petitioner had sufficient opportunity to raise the objection if he really wanted to raise the objection against the nomination paper filed by the respondent no.4 or in respect of the affidavit delivered by the respondent no.4 along with the nomination paper, failure to take such objection at the appropriate stage, it will not be possible at such a belated stage to entertain the challenge raised by the petitioner in the 7 13WP.3714-11 present writ petition. So far as the complaint of the petitioner submitted in view of section 125-A of the Act of 1951 is concerned, since it is pending for decision, it will not be proper for us to express any opinion in respect of the same, at this stage. 5. There is no quarrel with the decision of the Apex Court cited by the learned Counsel for the petitioner nor with the law declared by the Apex Court however in the facts and circumstances of that case, the contention canvassed before the Apex Court in the said case was that, having regard to the provisions of Article 329(b) of the Constitution, the High Court could not exercise its jurisdiction under Article 226 of the Constitution and further writ of quo warranto could not be issued after lapse of one year at the instance of a candidate who was defeated in the election. 6. In view of the above contention, the Apex Court in Para 26 of the judgment observed thus : “26. The question that arises for consideration is if in such circumstances the High Court cannot exercise 8 13WP.3714-11 its jurisdiction under Article 226 of the Constitution declaring that the appellant is not qualified to be a Member of Tamil Nadu Legislative Assembly from Lalgudi Assembly Constituency. From the finding recorded by the High Court it is clear that the appellant in his nomination form impersonated a person known as “Venkatachalam, s/o Pethu” taking advantage of the fact that such a person bears his first name. The appellant would be even criminally liable as he filed his nomination on an affidavit impersonating himself. If in such circumstances he is allowed to continue to sit and vote in the Assembly his action would be a fraud on the Constitution.” 7. It is in this backdrop, the Apex Court has concluded the issue by observing thus in para 28 of the judgment : “28. We are, therefore, of the view that the High Court rightly exercised its jurisdiction in entertaining the writ petition under Article 226 of the Constitution and declared that the appellant was not entitled to sit in Tamil Nadu Legislative Assembly with consequent restraint order on him from functioning as a Member of the Legislative Assembly. The net effect is that the appellant ceases to be a Member of Tamil Nadu Legislative 9 13WP.3714-11 Assembly. ............” 8. It is no doubt true that extra ordinary jurisdiction vested in the High Court under Article 226 of the Constitution is unfetter. However, whether in a given case it should be exercised or not depends upon the facts and circumstances of each case. Vesting of jurisdiction and exercise thereof are two different aspects. The High Court may have a jurisdiction, however, exercise thereof will necessarily depend upon the facts and circumstances of each case. Therefore, though there is no quarrel with the proposition of law declared by the Apex Court, however, we could not persuade ourselves to agree with the proposition canvassed by the Counsel for the Petitioner to show indulgence by exercising extraordinary jurisdiction vested in this Court under Article 226 of the Constitution, in the facts and circumstances of the present case. 9. Petition therefore suffers from lack of merits. It is not in dispute that there was alternate efficacious remedy of election petition available in law to the petitioner which he failed to avail. 10 13WP.3714-11 10. For the reasons stated herein above, Writ Petition suffers from lack of merits. Same is dismissed. (D. D. SINHA, J.) (A. R. JOSHI, J.)