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IN THE HIGH COURT OF BOMBAY
R.M. Lodha S.A. Bobde, JJ.
Anant Janardan Patil .... Petitioner.
Versus
State of Maharashtra others.... Respondents.
Writ Petition No. 5141 of 1997, decided on 17-1-2002.
Advocates appeared :
R.K. Mendadkar, for petitioner.
C.R. Sonawane, A.G.P., for respondent Nos. 2 to 4.
Constitution of India, 1950 - Articles 226 and 243-O(4) - Bombay Village Panchayats Act, 1958, Section 15 - Nomination paper - Rejection of - Challenged by Election Petition - In view of interim order of High Court nomination paper accepted - Petitioner elected unopposed - Election petition not required to be pursued now. - By reason of Article 243-O of the Constitution of India election to Panchayat cannot be questioned except by an election petition. The bar of Article 243-O(4) fundamentally rests on two planks (i) the election process must culminate in formal declaration of the result without intermediate interruptions and (ii) the aggrieved party has adequate and efficient remedy under election laws in questioning the election under available grounds and that must exclude other forum. However in the peculiar facts of the present case, though petitioner has challenged rejection of his nomination papers, he cannot now be relegated to pursue the remedy under election laws. Section 15 of Bombay Village Panchayats Act, 1958 provides that validity of any elected member can be questioned by way of election petition inter alia on the ground of wrongful rejection of nomination papers. As noted above the petitioner s nomination papers were accepted under the interim order of this Court and petitioner was elected unopposed being sole contestant. In the circumstances remedy under election law is not available to him in challenging the order of Returning Officer rejecting his nomination papers and matter has to be examined under Article 226.
Constitution of India, 1950 - Article 226 - Bombay Village Panchayats Election Rules, 1959, Rule 8 - Rejection of nomination paper - Caste certificate not in prescribed format - Format not prescribed by Rule or prescribed form - Issuing authority bound to follow Government Order - Caste certificate issued not invalid - Rejection of nomination paper illegal. - It is seen from Form A that in the case of a ward in which seat is reserved for scheduled castes, scheduled tribes or backward class the members of scheduled caste or scheduled tribe or backward class has to state the name of the caste or tribe or class. Neither the rules nor the prescribed form provide for a format for submission of caste certificate. Reliance placed by the Returning Officer on G.R. No. CBC 1680/ 43669/D-5 dated 29.10.1960 issued by Special Welfare Department only provides that for issuance of caste certificate, prescribed specimen format shall be used. This Resolution dated 29.10.1960 is to be adhered to by issuing authority. Merely because the issuing authority of caste certificate did not follow the Government Resolution dated 29.10.1960, that will not render the caste certificate issued by the said authority invalid. The caste certificate has been issued by the Executive Magistrate. Uran and there being no prescribed format for tendering such caste certificate alongwith the nomination form the Returning Officer could not have insisted on the caste certificate being tendered in the prescribed form. Moreover, Rule 11(2A) of Village Panchayats Election Rules in unequivocal terms provide that Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. The defect in the caste certificate annexed by the petitioner alongwith the nomination form pointed out by the Returning Officer is not of substantial character and, therefore, the petitioner nomination paper could not have been rejected. As a matter of fact the ground for rejection petitioner s nomination paper is untenable in the eye of law.
2. By means of this writ petition the petitioner seeks to challenge the order dated 20th October, 1997 issued by respondent No. 1 Returning Officer rejecting his nomination form for contesting the election in Ward No. 4 of Village Gram Panchayat Navghar which is reserved ward for schedule tribes. The petitioner claims that he belongs to Mahadeo Koli a notified schedule tribe. It is his case that the Executive Magistrate, Uran on 22-4-1980 has issued the certificate certifying the petitioner to be belonging to Mahadeo Koli-scheduled tribe. The petitioner filed his nomination form on 9-10-97 for Navghar Gram Panchayat election as scheduled to be held on 25-10-97. The Returning Officer rejected the petitioner's nomination form on scrutiny of the nomination paper on the following grounds:-
"1. Your application does accompany with xerox copy of scheduled tribe certificate, but it is not found in prescribed format. For issuance of caste certificate, Government in Social Welfare Department, Cultural Affairs and Sports Department was vide its G.R. No. CBC. 1680/43669/D-5, dated 29-10-1960 prescribed specimen format, and in that format, caste certificate is not annexed.
2. In an appeal filed by the Returning Officer of the Chanje Grampanchayat, Ward No. 2 election before the Tahsildar Uran under section 11 of the Village Panchayat Act, the Tahsildar, Uran has confirmed the decision of the Returning Officer dated 6-4-1995 holding vide its Order No. VP/Appeal No. 2/95 dated 10-4-1995 that the Mahadeo Koli tribe in Uran Taluka is not eligible to be issued scheduled tribe certificate."
3. It would not be out of place to mention here that by way of interim order passed by this Court on 16-1-98, the Returning Officer was directed to accept the nomination of the petitioner, if presented before 6.30 p.m. on that day. The Returning Officer was further directed to scrutinise the nomination of the petitioner in accordance with law and it was observed that his nomination form shall not be rejected on the ground of caste claim of the petitioner as scheduled tribe. This Court, however, clarified that result of the election shall be subject to the decision of this petition. The petitioner accordingly, filed his nomination papers on 16-1-1998 and after scrutiny the Returning Officer found the petitioners nomination papers proper. The petitioner being the sole contestant was declared elected unopposed.
4. We may notice here that by reason of Article 243-O of the Constitution of India election to Panchayat cannot be questioned except by an election petition. The bar of Article 243-O(4) fundamentally rests on two planks : (i) the election process must culminate in formal declaration of the result without intermediate interruptions; and (ii) the aggrieved party has adequate, and efficient remedy under election laws in questioning the election under available grounds and that must exclude other forum. However, in the peculiar facts of the present case, though petitioner has challenged rejection of his nomination papers, he cannot now be relegated to pursue the remedy under election laws. Section 15 of Bombay Village Panchayats Act, 1958 provides that validity of any elected member can be questioned by way of election petition inter alia on the ground of wrongful rejection of nomination papers. As noted above the petitioner's nomination papers were accepted under the interim order of this Court and petitioner was elected unopposed being sole contestant. In the circumstances remedy under election law is not available to him in challenging the order of Returning Officer rejecting his nomination papers and matter has to be examined by us under Article 226.
5. Reverting back to the order passed by the Returning Officer, we find that rejection of petitioner's nomination paper was unjustified. Rule 8 of Bombay Village Pancha
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