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1986 Supreme(AP) 63
Andhra Pradesh High Court
Judges : Y.V.ANJANEYULU
A.Y.N.Pethkar - Appellant
Versus
Municipal Corporation of Hyderabad - Respondent
Decided On : 02-03-86
A technical defect in the nomination paper, which is not of a substantial character, cannot be a ground for rejection of the nomination.
Headnote:
ELECTION LAW - NOMINATION - REJECTION - TECHNICAL DEFECT - SUBSTANTIAL CHARACTER - WRIT PETITION - MAINTAINABILITY - HYDERABAD MUNICIPAL CORPORATION ACT, 1955 - SECTION 36(5), 39(4).
Fact of the Case:
The petitioner filed his nomination for the election of councillors to the Hyderabad Municipal Corporation. The nomination was rejected by the 2nd respondent on the ground that it was delivered to him at 3:19 p.m. on 27-1-86, while it should have been delivered before 3 p.m. The petitioner challenged the rejection of his nomination.
Finding of the Court:
The court held that the nomination paper was received by the 2nd respondent before 3 p.m. on 27-1-86, but that, on account of the heavy rush, the process of receiving the nomination form from persons who were already present in the office of the 2nd respondent took a little more time beyond 3 p.m. and that was the reason why the 2nd respondent came to note the time of receipt as 3.10 p.m. The court further held that the defect, if any, in the petitioner not delivering his nomination paper to the 2nd respondent before 3 p.m. on account of the heavy rush should be regarded as technical and that the 2nd respondent was not justified in rejecting the nomination.
Issues: Whether the nomination paper was received by the 2nd respondent before 3 p.m. on 27-1-86.
Ratio Decidendi: The court held that the nomination paper was received by the 2nd respondent before 3 p.m. on 27-1-86, but that, on account of the heavy rush, the process of receiving the nomination form from persons who were already present in the office of the 2nd respondent took a little more time beyond 3 p.m. and that was the reason why the 2nd respondent came to note the time of receipt as 3.10 p.m. The court further held that the defect, if any, in the petitioner not delivering his nomination paper to the 2nd respondent before 3 p.m. on account of the heavy rush should be regarded as technical and that the 2nd respondent was not justified in rejecting the nomination.
Final Decision: The court allowed the writ petition and directed the 2nd respondent to treat the nomination filed by the petitioner as valid and take all further action pursuant to the nomination being regarded as a valid nomination.
( 1 ) IN connection with the elections to elect councillors for the municipal Corporation of Hyderabad, final electorol roll was published of all the hundred divisions comprising the municipal Corporation. It is stated that the petitioner is enumerated as an elector in the electoral roll prepared for narayanaguda division and his name is found in the final electoral roll published on 31-12-85. Under Section 33 of tne hyderabad Municipal Corporation Act (for short the Act ), the Commissioner of the Hyderabad Municipal Corporation appointed the date for making nomina- ti ns, etc. , for the elections. According to the notification issued under Sec. 33 of the Act, the fast date for making nominations was 27-1-86. With a view to contest elections as a Councillor to the Municipal Corporation Hyderabad from No. 17, Sultan Bazar Division, the petitioner! led his nomination the petitioner personally presented his nomina- tion form to the 2nd respondent herein. The nomination was rejected by the 2nd respondent on the ground thut it wae delivered to him at his office at 3 19 p m on 27-1-86 while it should have been delivered before 3pm. The petitioner challenges the tenability cf the second respondent rejecting his nomination on the afore-said ground.
( 2 ) IT is first necessary to clear the ground concerning the question whether a writ petition lies under Art. 226 of the constitution against the rejection of nomination. It is not necessary to deal with this matter at length as this court had occasion to consider this question in a number of cases and held, following principles enunciated by the Supreme court, that in exceptional cases, the court has jurisdiction to entertain a writ petition challenging the rejection of nomination, if such a writ petition is filed before the conduct of elections. The relevant law on the subject has succinctly been stated by my learned brother Jagannadha Rao, J. , while disposing W. P No 11466/85 dated 15-10-85 my learned brother has referred to a catena of decisions of this Court as well as other Courts taking the view that in exceptional cases, the High Court could intervene under Art. 226. All that Is required to be seen is whether this is one of those exceptional cases wherein interference is called for under Art. 226 of the Constitution.
( 3 ) THE petitioner s case is that? he went to the office of the 2ndrespondent at 2. go. P. M. along with his nomination paper in Form No. 8 of schedule A of the Act. According to him, he was accompanied by his propeser and other supporters. There was heavy rush in the office of the 2nd respondent at the relevant time. The petitioner s supporters waited outside and the petitioner and his proposer went inside the office. At that time, the 2nd respondent was receiving nomination papers from other candidates and making endorsements. The petitioner claims that he sat inside the office of the 2nd respondent waiting for his turn to present the nomination paper. It is said that at about 3 P. M. , the 2nd respondent issued instructions to pull down the shutters of the office, so that there may be no new entrants into the office and all the persons who entered the off ice before the shutters were pulled down at 3 P. M. could be attended. The petitioner states that his turn came at about 310 p m or so. The petitioner states that he represented to the 2nd respondent that he had been waiting inside the office along with his proposer from 2 30. p. m. and that the 2nd respondent received the nomination and issued a receipt to the petitioner stating that the nomination paper was delivered to him at 3 10 P. M The petitioner states that he objected to the 2nd respondent stating in the receipt that the nomination paper was received at 3 1q P M as he was waiting in the office room since 2 30 P. M. The petitioner states that the 2nd respondent assured him that it would make no difference as the nomination paper was duly received by him. On 28-1-86, when the petition
