Grievance of petitioner must be inquired through recording of evidence only: Bombay High Court

 on 08 07 2021 on 22 03 WP 85.2021 Corrected Judgment.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH AT NAGPURWRIT PETITION NO. 85 OF 2021Gazala Bi Saddam Shah aged about 27 years Occ. Houswife R o. At Post Dongaon Tahasil Mehkar Dist. Buldhana.. PetitionerVersus1) The Collector Buldhana2) The Returning Officer for the Electionsof Grampanchayat Dongaon andNaib Tahsildar Mehkar Tahsil Mehkar Dist.Buldhana3) The State Election Commission Maharashtra State Mumbai through itsCommissioner.4) Salma Bi w o Syed Noor Attar aged about 54 years Occupation Household R o Dongaon Tah.Mehkar Dist.Buldhana.. RespondentsMr. N. B. Kalwaghe Advocate for petitioner.Mr. S. M. Ukey Addl.G.P. for respondent Nos.1 & 2.Mr. J. B. Kasat Advocate for respondent No.3. Mr. R. L. Khapre Senior Advocate a b. Mr. D. R. Khapre Advocate for respondent No.4. CORAM:MANISH PITALE J.RESERVED ON :18 06 2021 PRONOUNCED ON :08 07 2021PAGE 1 OF 26 on 08 07 2021 on 22 03 WP 85.2021 Corrected Judgment.odtJUDGMENT Hearing was conducted through Video Conferencingand the learned counsel agreed that the audio and visual quality wasproper. of the Constitution of India andSection 15A of the Maharashtra Village Panchayats Act 1959subject to the result of thewrit petition. The said prayer clause reads as follows : “d. during pendency of instant petition by way of interimorder be pleased to direct the respondent No.2 i.e. theReturning Officer for Elections of Grampanchayat Dongaonand Naib Tahsildar Mehkar to provisionally accept thenomination paper of petitioner submitted for a seat reservedfor Backward Citizen Category OBC Women Categoryin the election for Ward No.1 of Village Dongaon Tah.Mehkar Dist. Buldhana ”(6)In view of the aforesaid interim relief granted bythis Court the nomination form of the petitioner was provisionallyaccepted by the respondent No.2 Returning Officer in the BCC Wcategory. As per the election program polling took place and resultwas declared. The petitioner was elected in the BCC W category. Onlythe petitioner and respondent No.4 were the candidates in the saidcategory and since the petitioner secured 1037 votes as against 467votes secured by respondent No.4 the petitioner stood elected. of the Constitution of India itwas submitted that the grievance of the petitioner could be raised onlyin a properly instituted election petition under Section 15 of the Act of1959. By relying upon the said provision the learned Senior Counselfurther submitted that in the present case the grievance of thepetitioner was acceptance of her nomination form in a wrong category PAGE 7 OF 26 on 08 07 2021 on 22 03 WP 85.2021 Corrected Judgment.odtwhich was also covered under the sweep of the said provision. It wasfurther submitted that acceptance of nomination form of the petitionerin the wrong category obviously meant that her nomination form hadbeen rejected in the category that she claimed the form ought to havebeen accepted. It was emphasized that Section 15A of the Act of 1959provided for an emphatic bar to interference in the election except inaccordance with Section 15 of the Act of 1959 under which only anelection petition could be filed. It was submitted that the word“election” included each and every stage thereof including the stage ofacceptance rejection of nomination forms and that therefore anygrievance with respect to the same could be raised only by way of anelection petition. The learned Senior Counsel relied upon thejudgment of the Hon’ble Supreme Court in the case of N.P.Ponnuswamiand the aforesaid Full Bench of this Court. It wasfurther submitted that the nature of dispute raised by the petitionerwould necessarily require an inquiry into the facts entailing recordingof evidence which can be done only in a properly instituted electionpetition thereby further indicating that the present writ petitiondeserves to be dismissed. PAGE 8 OF 26 on 08 07 2021 on 22 03 WP 85.2021 Corrected Judgment.odt(11)Mr.S.M.Ukey learned Additional GovernmentPleader appearing on behalf of the respondent Nos.1 & 2 submittedthat the bar under Article 243 O(b) of the Constitution of India andSection 15A of the Act of 1959 applied in full force to the facts of thepresent case. In the light of the aforesaid recent Full Bench judgmentof this Court the question regarding maintainability of the writpetition was no more res integra and that therefore the writ petitiondeserved to be dismissed. It was submitted that right from theenunciation of law by the Hon’ble Supreme Court in the case of N. P.Ponnuswamiupto the aforesaid recent Full Bench judgment ofthis Court it has been laid down and reiterated that election includesevery stage of the election and particularly the process of acceptance rejection of a nomination form. In the present case it is undisputedthat as per the election program the process of election started on14 12 2020 and that the grievance of the petitioner pertains to thestage of acceptance of nomination form. It was submitted thatacceptance of the nomination form of the petitioner in a category which according to her was wrong meant that impliedly hernomination form stood rejected in the alleged correct category. Byplacing reliance on the judgment of a Division Bench of this CourtPAGE 9 OF 26 on 08 07 2021 on 22 03 WP 85.2021 Corrected Judgment.odtpassed in the case of Vinod Pandurang Bharsakade vs. ReturningOfficer Akot3 particularly paragraph 51 thereof it was submitted thatthe grievance of the petitioner could be redressed only by way of aproperly instituted election petition under Section 15 of the Act of1959. Reliance was placed on the very same judgment to submit thatthe petitioner was not entitled to rely upon Sub Sectionof Section15 of the Act of 1959 because the very act of acceptance rejection ofnomination form by the Returning Officer amounted to adjudication ofthe entitlement of a person which was substantive in nature and it wasnot covered under the said provision. The learned AdditionalGovernment Pleader further submitted that the petitioner was notjustified in claiming that in the present case there was error committedby the respondent Election Commission in order to claim that writpetition was maintainable. of the Act of 1959 was not available tothe petitioner in order to claim that the writ petition was maintainable.32003Mh.L.J. 359PAGE 10 OF 26 on 08 07 2021 on 22 03 WP 85.2021 Corrected Judgment.odt(13)Mr. N. B. Kalwage learned counsel for the petitionerstrongly opposed the contentions raised on behalf of the respondentson the preliminary objection regarding maintainability of the writpetition. It was submitted that the present case was unique insofar asthe petitioner was not aggrieved by either rejection of her nominationform or the acceptance of the nomination form of her rival but shewas aggrieved by acceptance of her nomination form by therespondent No.2 Returning Officer in a wrong category. Accordingto the learned counsel for the petitioner such an error committed bythe Returning Officer could be set right only in a writ petition becausethe remedy of an election petition under Section 15 of the Act of 1959 could not be termed to be an efficacious remedy in view of SubSection(7) thereof which stipulates that when the validity of anelection is brought in question only on the ground of an error made bythe Officer or on the basis of an irregularity or informality notcorruptly caused the judge shall not set aside the election. of the Section 15 of the Act of 1959 even ifPAGE 11 OF 26 on 08 07 2021 on 22 03 WP 85.2021 Corrected Judgment.odtthe petitioner were to file an election petition he would not succeed insetting aside the election. and judgment of this Court in the case ofVinod Bharsakadeas also the aforementioned Full Benchjudgment rendered by this Court in the case of Karmaveer Autade(supra). Additionally the learned counsel for the petitioner also reliedupon judgment of the Hon’ble Supreme Court in the case of Laxmibaivs. Collector and others6. The learned counsel for the petitionerplaced much emphasis on the manner in which the respondentElection Commission has allegedly prescribed forms to be filled by thecandidate like the petitioner which were actually meant for election ofMembers to the Municipal Council and could not have been applied tothe elections to Gram Panchayat. It was submitted that because of4AIR 1956 SC 1535(1980) 4 SCC 2116(2020) 12 SCC 186PAGE 12 OF 26 on 08 07 2021 on 22 03 WP 85.2021 Corrected Judgment.odtsuch an error committed by the State Election Commission thenomination form of the petitioner was accepted in a wrong categoryi.e. BCC instead of BCC(W) to the prejudice of the petitioner. Such adispute could not be raised in an election petition under Section 15 ofthe Act of 1959 and that therefore the present petition was clearlymaintainable. By further inviting attention of this Court to thedocuments available on record it was submitted that the errorcommitted by the respondent No.2 Returning Officer was obviousand that the learned Senior Counsel appearing for respondent No.4was not justified in saying that the matter required recording ofevidence. category when the petitioner herself had beenwrongly deprived of participating in the same. By emphasizing on thefact that in pursuance of the interim order passed by this Court thepetitioner had participated in the election and she had won by aPAGE 13 OF 26 on 08 07 2021 on 22 03 WP 85.2021 Corrected Judgment.odthandsome margin it was submitted that the writ petition deserved tobe considered on its own merits and then to be allowed in its entirety. (b) no election to any Panchayats shall be called in question exceptby an election petition presented to such authority and in suchmanner as is provided for by or under any law made by theLegislature of a State.]Section 15 of the Act of 1959 : Determination of validity ofelections : enquiry by Judge procedure If the validity ofany election of a member of Panchayat is brought in question by[any candidate at such election or by] any person qualified to votePAGE 14 OF 26 on 08 07 2021 on 22 03 WP 85.2021 Corrected Judgment.odtat the election to which such question refers may at any time within fifteen days after the date ofdeclaration of the result of the election applyto the CivilJudgeand if there be no Civil Judgethen to the Civil Judge(hereinafter ineach in case referred to as “the Judge”) having ordinaryjurisdiction in the area within which the election has been orshould have been held for the determination of such question.(2) Any enquiry shall thereupon be held by the Judge and hemay after such enquiry as he deems necessary pass an order confirming or amending the declared result or setting the electionaside. For the purposes of the said enquiry the said Judge mayexercise all the powers of a Civil Court and his decision shall beconclusive.[If the election is set aside a date for holding a freshelection shall forthwith be fixed under section 11All applications received under sub sections(a) inwhich the validity of the election of members to represent thesame ward is in question shall be heard by the same Judge andin which the validity of the election of the same memberelected to represent the same ward is in question shall be heardtogether.(4) Notwithstanding anything contained in the Code of CivilProcedure 1908the Judge shall not permitanyapplication to be comprised or withdrawn orany person toalter or amend by pleading unless he is satisfied that suchapplication for compromise or withdrawal or the application forsuch alteration or amendment is bona fide and not collusive.(5)If on holding such enquiry the Judge finds that a candidatehas for the purpose of the election committed a corrupt practicewithin the meaning of subsection[ ] he shall declare thecandidate disqualified for the purpose of that election and of suchfresh election as may be held underand shall setaside the election of such candidate if he has been elected.(b) If in any case to which clausedoes not apply the validityof an election is in dispute between two or more candidates thePAGE 15 OF 26 on 08 07 2021 on 22 03 WP 85.2021 Corrected Judgment.odtJudge shall after a scrutiny and computation of the votes recordedin favour of each candidate declare the candidate who is found tohave the greatest number of valid votes in his favour to have beenduly elected:Provided that for the purpose of such computation no vote shallbe reckoned as valid if the Judge finds any corrupt practice wascommitted by any person known or unknown in giving orobtaining it:Provided further that after such computation if an equality ofvotes is found to exist between any candidates and the addition ofone vote will entitle any of the candidates to be declared elected one additional vote shall be added to the total number of validvotes found to have been received in favour of such candidate orcandidates as the case may be selected by lot drawn in thepresence of the Judge in such manner as he may determine.(6) A person shall be deemed to have committed a corruptpractice who with a view to inducing any voter to give or to refrainfrom giving a vote in favour of any candidate offers or gives anymoney or valuable consideration or holds out any promise ofindividual profit or holds out any threat of injury to any person orwho with a view to inducing any person to stand or not tostand or to withdraw from being a candidate at an election offersor gives any money or valuable consideration or holds out anypromise of individual profit or holds out any threat of injury toany person or(c) who hires or procures whether on payment or otherwise anyvehicle or vessel for the conveyance of any voterto andfrom any polling station:Provided that the hiring of a vehicle or vessel by a voter or byseveral voters at their cost for the purpose of conveying him orthem to or from any such polling station shall not be deemed tobe corrupt practice under this clause if the vehicle or vessel soPAGE 16 OF 26 on 08 07 2021 on 22 03 WP 85.2021 Corrected Judgment.odthired is a vehicle or vessel not propelled by mechanical power:Provided further that the use of any public transport vehicle orvessel or any tram car or railway carriage by any voter at his owncost for the purpose of going to or coming from any such pollingstation shall not be deemed to be a corrupt practice under thisclause.Explanation 1. A corrupt practice shall be deemed to have beencommitted by a candidate if it has been committed with hisknowledge and consent or by a person who is acting under thegeneral or special authority of such candidate with reference to theelection.Explanation 2. "A promise of individual profit" does not includea promise to vote for or against any particular measure which maycome before a Panchayat for consideration but subject thereto includes a promise for the benefit of the person himself or anyperson in whom he is interested.Explanation 3. The expression "vehicle" means any vehicle usedor capable or being used for the purpose of road transport whether propelled by mechanical power or otherwise and whetherused for drawing other vehicles or otherwise.[(7) If the validity of any election is brought in question only onthe ground of an error made by the Officer charged with carryingout the rules made in this behalf under section 176 read with sub sectionof section 10 and section 11 or of an irregularity orinformality not corruptly caused the Judge shall not set aside theelection.][Section 15A of the Act of 1959 : Bar to interference by Court inelectoral matters. No election to any Panchayat shall be calledin question except in accordance with the provisions of Section 15 and no Court other than the Judge referred to in that Section shallentertain any dispute in respect of such election.] ”(19)The learned counsel for the parties have invitedPAGE 17 OF 26 on 08 07 2021 on 22 03 WP 85.2021 Corrected Judgment.odtattention of this Court to the relevant judgments of the Hon’bleSupreme Court and this Court on the question of maintainability ofwrit petition in the face of the specific bar to interference in theprocess of election manifested in Article 243 O(b) of the Constitutionof India and Section 15A read with Section 15 of the Act of 1959.Similar such restrictions to filing of writ petitions have been subjectmatter of consideration pertaining to pari materia provisions beforethis Court and the Hon’ble Supreme Court. The series of relevantjudgments have been noticed in the recent Full Bench judgment of thisCourt in the case of Karmaveer AutadeDoes allowing a challenge in a writ petition torejection of nomination form to contest an election andgranting the relief claimed by setting aside such order ofrejection amount to intervention obstruction or protractionof the election or is it a step to facilitate the process ofcompletion of election Whether rejection of nomination form would attractthe provisions of Article 243 O(b) of the Constitution ofIndia PAGE 18 OF 26 on 08 07 2021 on 22 03 WP 85.2021 Corrected Judgment.odt(iii) Are the views expressed by the Division Benches ofthis Court in the case ofSudhakar s o. Vitthal Misal vs.State of Maharashtra and others. reported in 2007(6) All MR773 andSmt. Mayaraju Ghavghave vs. Returning Officerfor Gram Panchayat Dhamangaon and Anr. reported in2004(4) ALL MR 258 correct or does the decision in the caseof Vinod Pandurang Bharsakade vs. Returning Officer Akotand Anr. reported in 2003(4) Mh.L.J. 359 represents thecorrect view in law ”(20)Apart from this the Full Bench also held inparagraph 27 as follows : “27. Although 3questions have been referred bythe Division Bench for being answered by the larger Bench upon hearing the parties and the learned amicus curiae andon perusal of the authorities cited at the Bar as well as thestatutory provisions governing the elections in question weare of the considered view that the answer to a solitaryfundamental question arising for determination before uswould guide us to answer the questions referred withoutmuch ado. The fundamental question is whether a writpetition before the Bombay High Court exercising jurisdictionunder Article 226 of the Constitution would be maintainableif the petitioner seeks to challenge an order of rejection of hisnomination paperbythe Returning Officer the competent authority having regardto the provisions in Article 243 O of the Constitution as wellas section 15 A of the MVP Act read with section 15thereof "(21)The said questions were answered in the judgmentof the Full Bench in the following manner : PAGE 19 OF 26 on 08 07 2021 on 22 03 WP 85.2021 Corrected Judgment.odt“68. For the reasons aforesaid while agreeing with theview in Vinod Pandurang Bharsakadewe answer thefundamental question as formulated in paragraph 27 in thenegative. As a sequel thereto we answer the questionsreferred by the Division Bench in the manner as follows :Allowing a challenge in a writ petition to rejectionof nomination form to contest an election and granting therelief claimed by setting aside such order of rejection isdefinitely not a step to sub serve the progress of election and or facilitate its completion in the sense enunciated inMohinder Singh Gilland explained in Ashok Kumar(supra) though it may not always amount to intervention obstruction or protraction of the electionArticle243 O(b) of the Constitution of India is a barfor entertaining a writ petition under Article 226 of theConstitution against an order passed by the Returning Officerrejecting nomination paper and such provision would clearlybe attracted whenever a writ petition is presented before aCourt for its consideration andThe law laid down in Vinod Pandurang Bharsakade(supra) represents the correct view of law consequently wehold that the decision in Smt. Mayaraju Ghavghavedo not lay down thecorrect law ”(22)In the said Full Bench judgment of this Court copious reference has been made to the judgment of the Hon’bleSupreme Court in the case of N.P.Ponnuswamias alsosubsequent judgments in the case of Mohinder Singh Gill & Anr. Vs.PAGE 20 OF 26 on 08 07 2021 on 22 03 WP 85.2021 Corrected Judgment.odtThe Chief Election Commissioner New Delhi & Ors.7 ElectionCommission of India through Secretary Vs. Ashok Kumar & Ors.8 andrecent judgment in the case of Laxmibaistill holds good. The said positionof law unequivocally lays down that “election” includes the stage ofacceptance rejection of nomination form by the Returning Officer. Inthe case of Vinod Bharsakadea Division Bench of this Courtafter relying upon the judgment of the Hon’ble Supreme Court in thecase of N.P.Ponnuswamiin the light of Article 243 O(b) of theConstitution of India as also Sections 15 and 15A of the Act of 1959 held as follows : “51. Relying on Sections 15 and 15A of the Act Article243 O of the Constitution and following N. P. Ponnuswamiand other cases the Court held that a petition would not bemaintainable against an order rejecting a nomination paper.Legality or propriety of the election can be challenged onlyby filing an election petition. The Court observed that Section15 confers very wide powers on the trial Judge to decidevalidity of an election without specifying any grounds.Qualification or disqualification of an elected candidate improper rejection or acceptance of a nomination paper improper counting or commission of corrupt practice etc. are7(1978) 1 SCC 4058(2000) 8 SCC 216PAGE 21 OF 26 on 08 07 2021 on 22 03 WP 85.2021 Corrected Judgment.odtsome of the grounds for invalidating an election. Sub section(7) of Section 15 prohibits setting aside of an election only onthe ground of an error made by the Officer charged withcarrying out the rules. It means that if there is an errorwhich does not go to the root of the case and is only aninfraction of a rule that by itself will not entitle a person tochallenge the election and get it set aside. But whenReturning Officer accepts a nomination paper which oughtnot to have been accepted or rejects a nomination paper which should not have been rejected he adjudicatesentitlement of a person to contest or not to contest theelection. Sub sectionof Section 15 would therefore notprevent the judge from considering improper rejection oracceptance of nomination paper as a ground for setting asidethe election of a returned candidate.”of Section 15 of the Act of 1959. Therefore the contentionraised by the learned counsel for the petitioner in the context of thesaid provision stands answered in the above quoted portion of thejudgment. It has been specifically submitted that the nature of thegrievance of the petitioner is such that the judge while considering anelection petition under Section 15 of the Act of 1959 would not beable to set aside the election even if the contentions of the petitionerwere to be accepted. In the above quoted portion of the judgment ofthe Division Bench of this Court it has been specifically held that whenPAGE 22 OF 26 on 08 07 2021 on 22 03 WP 85.2021 Corrected Judgment.odta Returning Officer accepts a nomination paper or rejects it headjudicates entitlement of a person to contest or not to contest theelection and that therefore such a situation would not be coveredunder Sub Sectionof Section 15 of the Act of 1959. category. Therefore in the opinion of this Court the petitioner is not justified in claimingthat the peculiar facts of the present case would show that her case iscovered under Sub Sectionof Section 15 of the Act of 1959.(25)The learned Senior Counsel appearing forrespondent No.4 is justified in contending that any inquiry into thegrievance raised by the petitioner would necessarily entail finding onfacts which can be arrived at only upon recording of evidence and nototherwise. Such an exercise can be undertaken only by way of anelection petition under Section 15 of the Act of 1959. Once such afinding is reached the bar contemplated under Article 243 O(b) of theConstitution of India and Section 15A of the Act of 1959 would applyPAGE 24 OF 26 on 08 07 2021 on 22 03 WP 85.2021 Corrected Judgment.odtin its full force. is misplaced because thefacts of the said case are clearly distinguishable and in any case it hasbeen held that the function performed by Returning Officer under therelevant Statute is judicial in character but when the Returning Officerdecides the validity of a nomination paper he cannot be termed to be aCourt. The said observation of the Court cannot be of assistance to thepetitioner in the facts of the present case. is concerned the observations made by the Hon’bleSupreme Court are in the facts of that case where the questionpertained to the whole process of preparation of electoral rolls beingnull and void. Such is not the nature of grievance raised by thepetitioner before this Court. of theConstitution of India and Section 15A of the Act of 1959.Consequently the present writ petition is held to be not maintainable. KOLHE P.A. PAGE 26 OF 26 

Summary: Any inquiry into the grievance raised by the petitioner would necessarily entail finding on facts, which can be arrived at only upon recording of evidence and not otherwise, held, Justice Manish Pitale, while adjudicating the matter in Gazala B Saddam Shah v. The Collector; [WRIT PETITION NO. 85 OF 2021] The respondent No.3 declared election program for elections to Grampanchayats including Grampanchayat, Dongaon, with which the present petition is concerned. As per the election program, on 14/12/2020, the final voters list was published. The nomination forms were to be filled by candidates between 23/12/2020 to 30/12/2020. The scrutiny of nomination forms was to take place on 31/12/2020 and the nomination forms could be withdrawn on 04/01/2021. The final list of candidates and allotment of symbols was to be done on 04/01/2021 and the polling date was fixed for 15/01/2021 between 07.30a.m. to 05.30p.m. On 18/01/2021, the counting of votes was fixed, followed by the declaration of result. The petitioner claims in the writ petition that she filled her nomination form in the category of Backward Citizen Category – Women (BCC-W) for which one seat was reserved in ward No.1. Upon scrutiny of the nomination forms, the respondent No.2 – the Returning Officer published list of nomination forms found to be valid. The petitioner was shocked and surprise to find her name mentioned in the Backward Citizen Category (BCC). In the category of BCC-W, only the name of respondent No.4 as having filled valid nomination form was found, with the result that there was every chance of her being elected unopposed. Since last date for publishing the final list of candidates and allotment of symbols was dated 04/01/2021, the petitioner was constrained to urgently file the present writ petition on 02/01/2021. The writ petition was taken up for consideration in view of the extreme urgency on 04/01/2021 and upon hearing the learned counsel for the petitioner, this Court found that the petitioner had made out a prima facie case in her favour. The petitioners contended that in view of the specific questions framed and answered in the said judgment of the Full Bench of this Court, the present writ petition deserves to be dismissed, as not maintainable, in view of the 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).