Mohd. Talib s/o. Mohd. Sadique vs A. S. Kuchewar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2007 Supreme(Bom) 67

2007(3) ALL MR 99
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(NAGPUR BENCH)
V.C. DAGA & R.C. CHAVAN, JJ.
Dr. Mohd. Talib s/o. Mohd. Sadique- Petitioner
Versus
Dr. A. S. Kuchewar- Respondent
Writ Petition No.189 of 2007
Decided on 17th, January, 2007
Advocates appeared
Mr. A. S. CHANDURKAR, Advocate with Mr. M. I. KHAN & S. Z. QUAZI, for the Petitioner.
Mr. AMOL PATIL, Advocate for the Respondent.

Headnote:Maharashtra State Veterinary Council Rules, 2005 - Rule 3(8)(1) - Constitution of India, Article 226 - Veterinary Council - Election dispute - Exercise of writ jurisdiction by High Court under Article 226 - Impermissible - Jurisdiction under article cannot be invoked by-passing machinery designated by Act for adjudication of such dispute - However in exceptional or extraordinary circumstances alternative remedies can be by-passed. - Where a statute provides for election to an office, or an authority or institution and further provides a machinery or forum for determination of dispute arising out of election ordinarily the aggrieved person should pursue his remedy before the forum provided by the statute. The right to vote, contest or dispute election is neither a fundamental nor common law right, instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Article 226 by-passing the machinery designated by the Act for determination of the election dispute. But, there may be cases where exceptional or extraordinary circumstances may exist to justify by-passing the alternative remedies.
Maharashtra State Veterinary Council Rules, 2005 - Rule 3(8)(1) - Election - Post of member of council - Rejection of nomination form - On ground that petitioner’s name not tally with name mentioned in voter’s list and office record of council - Nomination form not suffered from any material defect - Identity of candidate not disputed - Defect in nomination form not of any substantial nature - Not warranting rejection of nomination form - Order rejecting nomination form of petitioner unjustified. - The nomination paper did not suffer from any material defect. The identity of the candidate was and is not in dispute. The defect in the nomination form was not of any substantial nature warranting rejection of the nomination paper. The Returning Officer was, therefore, not justified in rejecting the nomination form of the petitioner.

V.G. DAGA, J.:- Rule returnable forthwith.

2. Learned Counsel appearing on behalf of the respondent waives service. By consent taken up for hearing and final disposal.

3. This petition is directed against the action of the respondent Returning Officer, rejecting nomination form of the petitioner for the election to the post of member of the Maharashtra State Veterinary Council (the Council for short) for the year 2007 with further direction to accept the nomination form of the petitioner so as to enable him to contest the election to the post referred to herein above.

FACTUAL ASPECTS:

4. The petitioner is a registered veterinary practitioner on the register of the Council vide registration No.MSVC-2549 holding registration certificate. In the said certificate, the name of the petitioner is mentioned as "Dr. Mohd. Talib Mohd. Sadique".

5. The respondent-Returning Officer on 16/0112006 published the final electoral roll for the purposes of the elections to the four posts of the Council in the state electoral roll. The name of the petitioner appearing at Sr. No.592 mentioned as "Dr. Mohammad Talib Mohd. Sadique".

6. The respondent on 02/01/2007 published notice of election to the post of member of the Council under rule 3(8)(i) of the Maharashtra State Veterinary Council Rules, 2005 (the Rules for short). The petitioner on 03/1/2007 has submitted his duly filled in form of nomination in the prescribed format for the post of member of the Council.

In the form of nomination, the name of the petitioner was mentioned as, "Mohd. Talib Mohd. Sadique".

7. The respondent published the list of the candidates whose nomination forms were accepted and of those whose nomination forms were rejected. The name of the petitioner was shown at Sr.No.1 in the list of the candidates whose nomination forms were rejected and against the name of the petitioner the reason of rejection is that the name of the petitioner does not tally with the name mentioned in the voters' list and the office record of the Council.

8. The petitioner on 15/01/2007 made representation to the respondent Returning Officer pointing out the mistake committed by the respondent in rejecting the nomination paper of the petitioner. In the aforesaid representation the petitioner mentioned the above stated facts and also stated that "Mohd." is the abbreviation of the name "Mohammad" and prayed for reconsideration of his decision.

SUBMISSIONS:

9. Mr. Chandurkar, learned Counsel appearing for the petitioner urged that the alleged defect in the nomination form noticed by the Returning Officer is a technical defect.

The identity of the petitioner was never called in question. According to him in the nomination paper the name of the petitioner was mentioned as "Mohd." whereas the voters' list mentioned the name as "Mohammad".

According to him "Mohd." is short form of "Mohammad" which is well recognized in the Muslim community. In his submission, it is of common knowledge that "Mohd." is the abbreviation of the name "Mohammad". He, thus submitted that the defect was not of a substantial nature, and therefore, the nomination form could not have been rejected by the respondent-Returning Officer. He prayed that the action of the respondent be set aside and the petitioner be allowed to take part in the election by declaring that his nomination form was in accordance with law with further direction to the Election Officer to permit the petitioner to take part in the election process.

He placed reliance on the judgment of the Apex Court in the case of Harikrishna Lal V s. Babu Lal Marandi reported in (2003)8 SCC 613 and the judgment of the learned Single Bench of this Court in the case of Indumati Laxman Vs. State of Maharashtra reported in 2004(3) Mh.L.J. 6.

10. Mr. Amol Patil, Advocate tried to support the impugned action of the Returning Officer contending that the name of the petitioner written on the nomination form did not tally with the name appearing in the voters' list. He further submits that the ad

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2007 Supreme(Bom) 67

Cases Referred (6)