Back
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
N.P. Chapalgaonkar V.R. Datar, JJ.
Farook Ali Khan s/o Ilyas Khan and others ..... Petitioner.
Versus
Maharashtra State Election Commission others.... Respondents.
Writ Petition Nos. 3459, 3460, 3461, 3462, 3463, 3464, 3465, 3466, 3467, 3468, 3469 and 3472 of 1997, decided on 2-9-1997.
Advocates appeared :
V.J. Dixit, for the petitioner in W.P. No. 3459, 3460, 3461 of 97.
R.S. Deshmukh, A.G.P., for the State in W.P. No. 3459/97, for the resp. Nos. 1 to 3 in W.P. No. 3463/97, for resp. Nos. 1 to 4 in W.P. No. 3464/97.
N.H. Patil, for respondent No. 1 in W.P. No. 3459, 3460, 3461 of 97, for resp. No. 4 in W.P. No. 3462, 3463, 3467, 3468 of 97, for resp. No. 5 in W.P. No. 3464/97, for resp. No. 2 in W.P. No. 3466, 3469 of 97.
S.B. Bhapkar, A.G.P., for respondent Nos. 2 to 4 in W.P. No. 3460/97, for respondents Nos. 1 to 3 in W.P. No. 3467/97.
N.S. Chaudhari, A.G.P., for respondents Nos. 2 to 4 in W.P. No. 3461/97, for respondents Nos. 1 to 3 in W.P. No. 3462/97, for respondents Nos. 1 3 in W.P. No. 3469/97.
P.V. Mandlik, for the petitioners in W.P. No. 3462, 3463, 3467, 3468 of 97.
D.R. Shelke, for the petitioner in W.P. No. 3464/97.
S.B. Talekar, for the petitioner in W.P. No. 3465/97.
V.B. Ghatge, A.G.P., for the respondents in W.P. No. 3465/97.
A.G. Godhamgaonkar, for the petitioner in W.P. No. 3466/97.
K.G. Patil, A.G.P., for respondents Nos. 1, 3 and 4 in W.P. No. 3466/97.
S.K. Kadam, A.G.P., for respondents Nos. 1 to 3 in W.P. No. 3468/97.
M.V. Deshpande, for the petitioner in W.P. No. 3469/97.
K.G. Khader, for the petitioner in W.P. No. 3472/97.
V.D. Sapkal, A.G.P., for the respondents Nos. 1 2 in W.P. No. 3472/97.
Articles 226, 227 and 243-ZG-Bar under Article 243-ZG-Applicability election to municipal corporation-Nomination paper of candidate-Acceptance or rejection-Not challenged in writ jurisdiction-Entertaining challenge to election-Not proper.-The bar under Article 243-ZG and the similar provisions in the constitution applies to all stages of election covered by the said provisions. Rejection or acceptance of nomination paper is also a stage in election a~~ it cannot be challenged in a petition under Article 226 or 227 of the Constitution before the High Court. The only remedy available is the election petition as is provided by law. The High Court cannot entertain the challenge to an election of municipality or panchayat. The prohibition under Article 243-ZG is to be read in that context where alternative remedy is available.
Articles 226, 227 and 243-ZG-Election dispute-Bar under Article 243-ZG-At nomination paper rejection acceptance an Municipal Corporation Election-Applicable of Bar under Article 243-ZG prohibits jurisdiction of High Court. The provision of Article 243- ZG(b) IS m pan materia to Article 329(b). What is prohibited in Article 329(b) in respect of the elections to the Legislature is also prohibited in respect of elections to the Municipalities under Article 243ZG(b). There is nothing either in the wording of Article 243-ZG or in the context in which it is used to permit this High Court to hold that the word election Occurring in this Provision is used in a narrower sense than it signifies when it Occurs in Article 329(b).
Though the High Court may entertain a petition when the question of vires of a law relating to election (except the law relating to delimitation) is questioned. But there are two blanket restrictions on the power to be exercised by the High Court. The first is that it cannot entertain a challenge to any law relating to delimitation of the constituencies or the allotment of seats to such constituency and the second is that it cannot entertain the challenge to an election of the Municipality or the Panchayat.
There is no encroachment on the power of judicial review which is entrusted with the High Court under the Constitution. A remedy has been provided by way of an election petition to challenge the election including acceptance or rejection of a nomination paper. Whatever order is passed in an election petition by the Tribunal Constituted under the law, can always be a subject matter of judicial review. But in the presence of an alternate remedy, even the norms of judicial restraint followed by High Court Would not permit the review of Such orders before the alternates remedy is resorted to. The prohibition under Article 243-ZG is to be read in this Context.
2. The nomination papers were rejected on either of the following grounds :
(1) The petitioner was not qualified to be chosen being below the prescribed age of 21 years;
(2) The original caste certificate showing the entitlement of the petitioner to contest the seat reserved for that category was not produced at the time of scrutiny;
(3) Certificate which was produced did not contain the seal of the office of the authority issuing the certificate;
(4) The name in the caste certificate and the name in the nomination form did not tally;
(5) The name as given in the voters' list and as given in the nomination paper, differs;
(6) The petitioner was holding a plumber's licence and, therefore, was disqualified within the meaning of section 10(1)(d).
3. The maintainability of these petitions was objected to by the learned Counsel for the State Election Commission Shri N.H. Patil and the learned A.G.P. Shri V.D. Sapkal. Both of them contended that Article 243-ZG(b) creates an absolute bar and prohibits the interference by any Court, including this Court, in the election process, which is already on. The election will have to be challenged only in the manner prescribed by law. The Counsel for the petitioners Shri V.J. Dixit, Shri P.V. Mandlik, Shri D.R. Shelke, Shri S.B. Talekar, Shri A.G. Godhamgaonkar, Shri M.V. Deshpande, and Shri K.C. Khader submitted that these petitions do not pray for stay of the election process but pray for correction, which can be made without disturbing the calender of events prescribed by the authority and since there is no challenge to the election as such, the challenge to the Returning Officer's order rejecting or accepting a nomination paper is not covered by the prohibition contained in Article 243-ZG of the Constitution of India. It was further contended that unlike the Statute governing other local authorities like, Zilla Parishads, Panchayat Samitis, Village Panchayat and the Municipalities in Maharashtra, the Bombay Provincial Municipal Corporations Act, 1949 does not provide for an appeal against the acceptance or rejection of a nomination paper and, therefore, there is no efficacious and alternate remedy available to the petitioners than to approach this Court under Article 226 and 227. It is further submitted that the election rules appended as the Schedule to the Bombay Provincial Municipal Corporation Act do not contain any specific provision for the scrutiny of the nomination paper listing the grounds on which the nomination paper can be rejected and leaves the field for exercise of an unguided and uncontrolled power by the Returning Officer. If such a power is there, it is very much necessary that this Court should exercise the power of review which is inherent to this Court and cannot be taken away by any statutory provision, it being a component of basic structure of the Constitution. It is further contended that any notification or order of the Election Commission or any person authorised by it, can be reviewed by this Court and proper orders annulying or modifying the said order can always be passed despite the provisions contained in Article 243-ZG.
4. The first contention raised by the petitioners that the rejection or accep
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
